HomeMy WebLinkAbout2003-3597 Beltrano et al 08-08-11 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB# 2003-3597, 2003-3600, 2003-3603, 2003-3604
UNION# 2004-0135-0001, 2004-0135-0002, 2004-0135-0005, 2004-0135-0006
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Beltranoet al.)
Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFOREKen Petryshen Vice-Chair
FOR THE UNIONEd Holmes
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER
Suneel Bahal
Counsel
Ministry of Government Services
HEARING October 4 and December 21, 2004; March 1, April 7, April 26, 27, May 31,
June 1, June 6, 7, November 9, 10, December 20, 21,2005; February 21, 22,
28, March 1, 7, 8, April 5, 6, 11, 12, 25, 26, May 2, 3, 9, 10, 24, 25, July 7,
October 18, 19, 23, 24, November 10, 23, 24, 27, 28, December 20, 21, 2006;
.
January 30, 31, March 14, 15, April 24 and 25, 2007
Decision
On January 27, 2004, Mike Wasylyk, Superintendent at the Windsor Jail (?WJ?),
discharged Correctional Officers (?COs?) Dave Orton, John Noseworthy and Kevin Beltrano.
On the same day, each CO filed a grievance claiming that his discharge was without just cause.
The primary ground relied on by the Employer to support the discharges is that the grievors used
unjustified and excessive force on an inmate. There were other grounds for discipline relied on
by the Employer, however these grounds alone would not justify the penalty of discharge. The
Union takes the position that the grievors did not use unjustified or excessive force as alleged by
the Employer and it requests that the grievors be reinstated to their former employment at the WJ
and compensated for their losses. The Employer takes the position that the grievors engaged in
serious misconduct warranting discharge and it requests that I dismiss the grievances. In the
alternative, the Employer requests that I award the grievors damages in lieu of reinstatement
should I conclude that just cause for the discharges has not been proven. In the further
alternative, the Employer requests that if I decide to reinstate the grievors that I do so without
compensation and/or to an institution other than the WJ. There was no challenge to my
jurisdiction to hear and determine these grievances.
The discharges arose out of two incidents at the WJ. One incident occurred on March 11,
2003 and primarily involved COs Noseworthy, Orton and inmate Patrick Horan. The other
incident occurred on July 28, 2002 and primarily involved COs Noseworthy, Beltrano and
inmate Steven Caza. The conduct of COs Noseworthy and Orton became an issue when two
COs, Allison Burnett and Mario Basar, filed Occurrence Reports (?ORs?) which indicated that
COs Noseworthy and Orton used unjustified and excessive force against Horan. In essence, CO
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Burnett indicates that she observed COs Noseworthy and Orton punch Horan when he was
walking during an escort to the segregation unit. CO Burnett further indicates that she saw COs
Noseworthy and Orton punch Horan while he was on the floor after they took him down. CO
Basar also indicates that he saw COs Noseworthy and Orton punch Horan while Horan was on
the floor. COs Noseworthy and Orton claim that the takedown of Horan was justified and they
deny punching him at any time.
In his OR on the Horan incident, CO Basar indirectly referred to an earlier occasion when
unjustified and excessive force was used which was identified later as the Caza incident. In
essence, CO Basar indicates that on July 28, 2002, he observed CO Beltrano punch Caza two or
three times in the head while standing over him when they were in the hallway of N Ward and
then drag Caza down the hall to the Admitting and Discharge unit (?A&D?). CO Basar also
indicates that he observed CO Noseworthy kicking Caza on the legs and torso as he was dragged
to A&D. CO Beltrano denies that he punched Caza and dragged him to A&D. CO Noseworthy
denies that he kicked Caza on the way to A&D.
At the outset of this proceeding, I also had before me the grievance of CO Dave
Fredericks. The Employer discharged CO Fredericks for his involvement in the Horan incident.
At the conclusion of the Employer?s case, the Union made a non-suit motion in which it argued
that there was no evidence to support the discharge of CO Fredericks. The issue before me on
the motion was whether there was any evidence to support the Employer?s claim against CO
Fredericks. I dismissed the motion in a decision dated May 23, 2006. The parties subsequently
resolved CO Fredericks? grievance by Minutes of Settlement dated October 18, 2006. One of the
terms of the agreement is a confidentiality provision.
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The grievors and COs Burnett and Basar were unclassified employees when the two
incidents occurred and they had not been COs for very long. CO Basar was hired in February of
1997 and CO Burnett was hired in September of 1998. CO Noseworthy was hired in September
of 1998, CO Orton in November of 2001 and CO Beltrano in February of 2000. CO Beltrano
started at the WJ in July of 2000.
The hearing of these grievances took a considerable time to complete. The first
scheduled day of hearing was October 4, 2004. On the agreement of the parties, I took a view of
the WJ on December 21, 2004. The Employer called its first witness on March 1, 2005. More
than two years later the hearing was completed, after 45 days of evidence and 4 days of final
argument. The Employer called 14 witnesses and one in reply; the Union called 13 witnesses.
The parties filed 102 exhibits. The common sense approach of dealing with both incidents in
one proceeding served ultimately to save hearing time. Although this matter was very
contentious and factually complex, counsel made every effort to put the evidence in as efficiently
and as expeditiously as possible. Their efforts in this regard meant that less hearing time was
required than otherwise would have been the case. Although the central features of the two
incidents were over in minutes, many witnesses were required to deal with all of the issues in
dispute, which resulted in a lengthy hearing.
The Employer called the following persons to testify: COs Burnett, Basar, William
Heggie, Dawn Foster, Superintendent Wasylyk, Deputy Superintendents Steve Ormsby and
Rudy Neufeld, Jamie Taylor, acting Operational Manager (?OM?) at the relevant time, Security
Manager (?SM?) Brian Trudell, Registered Nurse (?RN?) Cathy Imeson, Inspector James
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Micucci, the primary Correctional Investigation & Security Unit (?CISU?) investigator, Greg
Ireland, Provincial Coordinator for Use of Force Program, Lynn Patrick, a former acting Deputy
Superintendent at the WJ who left that institution in 2000 and Donna Keating, a former
Superintendent at the WJ who left that position in October of 2002. CO Burnett was called again
to testify in reply. The Employer did not call inmates Horan and Caza as witnesses. The Union
submits that their absence in this proceeding has particular significance.
The Union called the following witnesses: COs Beltrano, Orton, Noseworthy, Fredericks,
Paul Petrone, Dave Beaul, Melissa Pinazza, Robert McGhee, Bob Mahoney (Union Steward),
Shannon Tennant, who was a Police Constable with Windsor Police Services when he testified,
Mark Adam, who was an acting OM at the relevant time, and OMs Kathy Maccarone and Ed
Tighe.
In determining the facts, I have carefully reviewed the testimony of all of the witnesses,
the documentary evidence and the submissions of counsel relating thereto. The conflicts in the
evidence were considerable and where they occurred I applied the usual criteria to resolve them.
As both counsel noted in their submissions, credibility is a significant issue in this case. As I
noted previously, the version of the Horan incident provided by COs Burnett and Basar is
significantly different from the one provided by COs Orton, Noseworthy and other witnesses.
The version of the Caza incident provided by CO Basar is very different from the one given by
CO Beltrano and other witnesses. The inescapable explanation for these significant differences
is that some witnesses were not telling the truth. The Employer?s success in this proceeding in
large part hinges on the credibility of COs Burnett and Basar. In resolving the credibility issues,
I utilized the principles in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.). I took into
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account the following factors: the demeanour of the witnesses; the clarity, consistency and
overall plausibility of their testimony in light of all of the evidence, including the documentary
evidence; the ability of witnesses to resist self-interest; and what seemed most probable in all the
circumstances.
On March 20, 2003, soon after COs Burnett and Basar filed their ORs, Inspector Micucci
of the CISU was assigned to investigate the circumstances of the Horan incident. He also
investigated the circumstances of the Caza incident. Inspector Farkas also participated in the
investigation process. COs Noseworthy, Orton, Beltrano and Fredericks provided statements to
the CISU investigator, as did COs Burnett and Basar, inmates Horan and Caza, and other persons
who witnessed the incidents. The CISU completed the investigation and prepared an
Investigation Report (?the Report?) by October 8, 2003. The findings in the Report were adverse
to the positions of the grievors and to other employees who were less directly involved in the
Horan incident.
Mr. Wasylyk became Superintendent of the WJ in July of 2003, but effectively assumed
the role in early September of 2003. By then, the grievors were on suspension with pay. The
Regional Director, Western Region, and the Deputies at the WJ briefed Superintendent Wasylyk
about the CISU investigation. He received the Report in approximately mid-October of 2003.
He carefully read the Report many times, reviewed its many findings and the documentation
relevant to the investigation. He prepared allegation letters near the end of November of 2003.
The grievors received allegation letters, as did a number of other persons, including COs Burnett
and Basar. Superintendent Wasylyk met with each of the grievors to hear their responses to the
allegations. Although the Report contained numerous findings, Superintendent Wasylyk made
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his own assessment based on all of the material before him as to whether the grievors and others
contravened Ministry directives and policies. He determined that each of the serious allegations
against the grievors relating to the use of force, as well as other allegations, was substantiated.
He concluded that the grievors? versions of the incidents were not credible. He preferred the
versions of the events provided by COs Burnett and Basar, which he found to be essentially
consistent with the statements given to the investigator by inmates Horan and Caza. After
reviewing each grievor?s employment file, and considering the nature of the offences, their
employment history, their length of service and other relevant factors, Superintendent Wasylyk
determined that discharge was the appropriate penalty for each grievor.
Superintendent Wasylyk set out in each grievor?s discharge letter the allegations that he
found to be substantiated. I have set out below the basis for each grievor?s discipline, without
reference to the specific Ministry Policy and Standing Order that was allegedly breached.
CO Beltrano was disciplined for the following conduct:
1)That on July 28, 2002, you used force that was unjustified and excessive by striking
inmate Caza multiple times in the head outside ?N? range?
2)That on July 28, 2002, you failed to submit an Occurrence Report concerning the
incident with inmate Caza on July 28, 2002 that detailed the nature of the threat posed
by this inmate as well as all the circumstances of the incident?
CO Orton was disciplined for the following conduct:
1)That on Tuesday, March 11, 2003, you failed to maintain the confidentiality of
information by discussing information concerning inmate Horan within hearing
distance of other offenders?
2)That on Tuesday, March 11, 2003, you exercised poor judgment and carelessness by
utilizing Mr. Noseworthy to assist you in escorting inmate Horan?
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3)That on Tuesday, March 11, 2003, you acted in an inappropriate manner by use of
profane language directed at inmate Horan?
4) That on Tuesday March 11, 2003, you used force by pulling and pushing inmate
Horan while escorting him down the stairs to segregation?
5)That on Tuesday, March 11, 2003, you used force that was unjustified and excessive
by striking inmate Horan in the shoulder area with a closed fist while in the first floor
hallway?
6)That on Tuesday, March 11, 2003, you used force that was unjustified and excessive
by striking inmate Horan multiple times while he was restrained on the first floor?
7)That on Tuesday, March 11, 2003, you failed to submit an Occurrence Report
concerning the incident with inmate Horan on Tuesday, March 11, 2003 that detailed
the nature of the threat posed by this inmate as well as all the circumstances of the
incident?
CO Noseworthy was disciplined for the specific conduct in paragraphs 1, 3, 4, 6 and 7 set
out above that was attributed as well to CO Orton in the Horan incident. In addition, the
Employer asserts that CO Noseworthy acted as follows:
4)That on Tuesday, March 11, 2003, you used force that was unjustified and by striking
inmate Horan in the head with a closed fist while in the first floor hallway?
CO Noseworthy was disciplined for the following conduct in relation to the Caza
incident:
1)That on July 28, 2002, you used force that was unjustified and excessive by kicking
inmate Caza multiple times in the legs and torso while escorting him to A&D?
2)That on July 28, 2002, you failed to submit an Occurrence Report concerning the
incident with inmate Caza on July 28, 2002 that detailed the nature of the threat posed
by this inmate as well as all of the circumstances of the incident?
The Employer disciplined other persons for their conduct in the Horan incident. OM
Keating was issued a ten day suspension. SM Trudell was given a letter of warning. A number
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of bargaining unit employees, including COs Burnett and Basar, were issued letters of reprimand
for failing either to write an OR or to file a timely OR.
What follows is a summary of the facts and evidence for the Horan and the Caza
incidents, as well as for some of the subsequent relevant events. For obvious reasons, the focus
is on the facts and evidence that relate to the allegations of unjustified and excessive use of force
by the grievors. Summarizing the testimony of most of the witnesses serves to highlight the
inconsistencies in the evidence and the nature of the issues in dispute. In addition, it assists in
appreciating the submissions of counsel. In summarizing a witness?s account of the relevant
events, I have considered their oral testimony, any OR that they may have prepared and any
CISU statement that they may have made to the investigator.
The Horan Incident
The Horan incident occurred during the day shift on March 11, 2003.During that shift,
CO Basar was the main floor officer on the first floor, CO Burnett was the first floor utility
officer, CO Fredericks was assigned to the Young Offender Unit on the third floor and COs
Orton and Noseworthy were spare officers. OM Keating was the supervisor in charge of the
shift (?the IC?). The IC?s office is located on the third floor.
Inmate Horan, who had been incarcerated previously at the WJ, was in a cell in the
segregation unit on March 11, 2003. This unit is used primarily to house inmates for disciplinary
and special needs reasons. The unit is located on the first floor and consists of four cells and a
shower cell. Each of the four cells has a small window in the cell door for viewing a segregated
inmate. Inmates in these cells can communicate with each other, but cannot see each other. CO
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Greg Filiatrault was assigned to a constant suicide watch in the segregation unit on the day shift
and CO Beaul was assigned the same duties in that unit on the afternoon shift.
At approximately 10:30 a.m., while doing a round, CO Burnett observed CO Noseworthy
and CO Orton in the segregation unit. CO Filiatrault was being relieved at the time and was not
in the area. She testified that she overheard CO Noseworthy ask Horan a few times in a taunting
manner about whether he was ?PC? in a voice loud enough that other inmates in the unit would
be able to hear. CO Burnett indicated that she did not hear Horan respond to the question and
that she did not recall CO Orton saying anything. She indicated that she left the segregation area
without saying anything. CO Noseworthy testified that he did not ask Horan whether he was a
PC and he indicated that CO Orton did not make any such inappropriate comments either. CO
Orton testified that he could not recall asking Horan in segregation if he was a PC, but that it
would have been appropriate for him to do so if he did. He admitted in his CISU statement that
he did ask Horan about his PC status when other inmates were present and he conceded in
retrospect that his judgment in doing so was flawed. Superintendent Wasylyk indicated that CO
Orton admitted during his allegation meeting that he had asked Horan whether he was PC.
Protective Custody (?PC?) inmates are kept separate from the inmates in the general
population for their own protection and efforts are made not to disclose which inmates are
designated as PC. As CO Burnett and other witnesses indicated, general population inmates treat
PC inmates as an automatic target. Although he had not been designated as PC at that time,
Horan would be at some risk if other inmates thought that he was a PC.
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At about 1:30 p.m., while performing a security round, OM Keating noticed that Horan
was sitting in his segregation cell, with a white object around his neck. OM Keating radioed for
first floor officers to attend the segregation unit and a number of officers quickly arrived,
including COs Orton and Noseworthy. Horan was in some distress due to a suicide attempt. He
was restrained and CO Orton removed socks tied around his neck, with assistance from CO
Noseworthy. COs Burnett and Basar also responded to OM Keating?s call for assistance, but
other than CO Basar calling for the nurse, they did not participate in the event because other
officers arrived earlier and the situation was under control. After assessing Horan, RN Cumming
decided to place him on a constant suicide watch. His orange coveralls were replaced with a
security gown, the normal attire for an inmate subject to a suicide watch. A security gown is a
long, sleeveless garment that looks like a dress or smock, made of durable material that is
difficult to tear.
COs Noseworthy and Orton each prepared an OR on the day of the event about Horan?s
attempted suicide. The time on CO Orton?s OR is 2:11 p.m. CO Orton testified that he and
other officers talked about Horan when he was typing the OR in the A&D area. He indicated
that these officers told him that Horan was unpredictable. CO Orton could not recall the names
of these officers or the details of the conversation. CO Orton testified that he did not know
Horan before his involvement in the suicide attempt.
Horan?s wife wanted to visit him shortly after his suicide attempt. OM Keating told her
that a visit was not possible at that time, but he would see if Horan could see her later that day.
At about 3:30 p.m., OM Keating requested CO Orton to escort Horan to the IC?s office. CO
Orton asked Keating if he should put handcuffs on Horan and Keating told him to bring Horan as
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he was. An inmate in Horan?s situation normally would be restrained with handcuffs. CO Orton
testified that he asked CO Noseworthy to assist him with the escort and that they both went to the
segregation unit to get Horan. They told Horan that the IC wanted to see him. CO Orton
indicated that Horan accused Noseworthy of doing something to him in the past, followed by
some insults. CO Orton indicated that because of this exchange between Horan and CO
Noseworthy, he decided to take the lead on the escort and they proceeded on their way to the
IC?s office. Neither CO Orton nor CO Noseworthy put his hands on Horan on the way to see
OM Keating. CO Orton indicated that essentially the escort to the IC?s office was without
incident, except that Horan moved erratically, first quickly and then slowly. When Horan moved
slowly, CO Orton instructed him to pick up his pace. CO Noseworthy indicated that the escort
proceeded to the IC?s office at a normal pace and that Horan was quiet, although from his facial
expressions he appeared upset. Horan was wearing the security gown during the escort even
though inmates usually wear coveralls when moving throughout the institution. Horan is a large
and strong man, approximately six feet tall, with a stocky build.
CO Burnett was in the IC?s office checking her schedule when CO?s Orton and
Noseworthy brought Horan into the office. OM Keating asked Horan how he was feeling and if
he wanted a visit from his wife. Horan indicated that he did not want to be there and he became
more upset and louder as the discussion continued.He told OM Keating that he did not want to
see his wife, that he just wanted to die and that he would continue to try to kill himself. Unable
to calm Horan and recognizing that any further discussion was pointless, OM Keating told the
escorting officers to return Horan to the segregation unit. Horan left the office first, followed by
CO Orton and then CO Noseworthy. CO Burnett followed soon after, intending to return to her
post on the first floor.
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Any unusual sounds in an institution, including loud voices, will attract the attention of
COs because such circumstances may indicate that a situation might develop where a CO may
need assistance. The loud voice of Horan in the IC?s office and during the return escort to the
segregation unit attracted the attention of some COs.
After leaving the IC?s office, the escort proceeded to the stairway that leads to the first
floor. The escort turned left at the bottom of the third floor stairway and walked a short distance
to take the stairway from the second floor to the first floor. Once it reached the first floor, the
escort turned left and walked down a hall that leads to the segregation unit. There is a code blue
alarm button at the bottom of the first floor stairs, on the wall to the right. When walking down
the hallway to segregation from the bottom of the first floor stairs, there is a railing on the left
and a wall on the right. The railing ends at a stairway that leads to the boiler room. Opposite
that stairway, on the other side of the hallway, is a door that leads to the laundry and the back of
the kitchen. Once you pass the stairway opening on your left and the laundry door on the right,
you immediately go through a doorway and continue down the hallway that leads to the
segregation unit. At the bottom of the first floor stairs, before turning left, you would face the
entrance to A & B Wards, which is in the opposite direction from the segregation unit.
CO Burnett followed the escort from the third floor to the first floor at a distance from
which she could observe and hear what was taking place in front of her. When she was at the top
of the third floor landing, the escort was near the bottom of that flight of stairs. She testified that
CO Orton was to the left of Horan and that CO Noseworthy was behind Horan, holding on to his
security gown near Horan?s neck. She testified that on at least three to five instances during the
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escort she saw CO Noseworthy push Horan and then tell him to slow down. She indicated that
Horan got more irritated each time this occurred and responded in a loud voice by initially
saying, ?Fuck off? and later when pushed would say, ?Fuck off you fucking goof.? CO Burnett
testified that apart from his loud verbal responses to being pushed, Horan was just walking
normally. She indicated that she heard CO Noseworthy ask Horan, ?Are you threatening me?
when they were on the first floor staircase, but that she did not hear any threat from Horan. She
testified that on the first floor hallway CO Noseworthy kept ?egging Horan on by asking him are
you threatening me.?
CO Burnett testified that as the escort approached the laundry door, with Horan walking
normally and not doing anything but talking loudly, CO Noseworthy again asked, ?Are you
threatening me? and Horan said, ?No? as he again told him to ?fuck off?. She testified that as
CO Noseworthy and Horan had just past the laundry door and were in the doorway of the
hallway leading to segregation, CO Noseworthy punched Horan on the left side of the head with
a closed fist, causing his head to be thrown back. She testified that CO Orton then struck Horan
on the right side of the head with a closed fist. CO Burnett indicated that she then saw Horan
grab on to the railing that was on the segregation side of the doorway and the two COs jumped
on him to bring him to the floor. She indicated that she saw Horan?s arm come up to take a
swing, but she did not see it connect. She assumed that it had connected when she observed a
trickle of blood on CO Noseworthy?s face. She testified that COs Noseworthy and Orton were
throwing punches at Horan as they were struggling to take him to the floor. CO Burnett had
noticed CO Fredericks while she was on the second floor staircase and, without realizing that he
had passed her, she saw him assist COs Orton and Noseworthy take Horan down to the floor.
CO Burnett testified that there was a lot of movement and because everything was happening so
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quickly after the first punch was thrown, she could not provide a second by second account of
what took place.
CO Burnett indicated that Horan ended up on the floor in front of the laundry door. CO
Burnett testified that Horan was initially on his left side, facing towards the stairway that leads to
the boiler room and then was on his stomach. CO Burnett indicated that CO Fredericks was
located near Horan?s shoulder area, attempting with his hands to control him, while COs Orton
and Noseworthy were on opposite sides of Horan.She testified that she observed COs Orton and
Noseworthy punching Horan with closed fists while Horan was on his stomach on the floor. She
indicated that she said, ?That?s enough?, but received no response. She testified that when she
then said that she would push the code blue alarm button, CO Orton looked at her and made a
motion with his hand across his throat, while continuing to hit Horan. She interpreted the motion
he made as a signal not to hit the alarm button. She ignored him and proceeded to push the
alarm button anyway. She stated that she decided to activate the code blue alarm to bring the
excessive use of force to a stop. She testified that when she returned to where she had stood
previously, she observed that Horan was now on his side and that CO Noseworthy was trying to
turn Horan over by twisting his foot. She indicated that Horan was in obvious pain and
screaming that CO Noseworthy was going to break his ankle. CO Burnett indicated that CO
Noseworthy had his knees on the lower part of Horan?s legs at some point and that on occasion
he was twisting Horan?s foot in the opposite direction. She testified that while this was going on
she saw CO Orton hit Horan a few more times. During cross-examination, she indicated that she
could not recall if she saw CO Orton hit Horan after the alarm was activated. Counsel referred
her to her CISU statement during re-direct examination and she indicated that based on what she
said to the CISU investigator that CO Orton did hit Horan after the alarm was activated.
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CO Burnett estimated that she observed COs Orton and Noseworthy punch Horan about
fifteen times, but she could not say how many punches were thrown by each of them. She
indicated that the punches were on Horan?s head and torso, with most to Horan?s torso, and that
she could not recall any punches to his face. CO Burnett testified that she did not see CO
Noseworthy punch Horan in the head when Horan was on the floor and that she did not see CO
Fredericks punch Horan. CO Burnett indicated that once other COs and management arrived in
response to the code blue alarm, the punches to Horan had stopped and Horan was handcuffed
and escorted to the segregation unit. CO Burnett testified that on the way to segregation Horan
was calling CO Noseworthy ?a fucking goof? and indicating that he wanted to charge him. She
indicated that CO Noseworthy responded by saying ?fuck you? to Horan.
While in the segregation unit, CO Burnett watched as Horan was eventually placed in cell
#4. She testified that as CO Noseworthy went to enter cell #4, OM Keating told him not to enter
the cell. She indicated that CO Noseworthy kept moving into the cell and that OM Keating
pulled at the back of his shirt and told him again not to enter. She stated that CO Noseworthy
said, ?Don?t touch my fucking shirt?. She testified that CO Noseworthy finally did leave
segregation when OM Keating told him to leave and get some medical attention. A number of
witnesses confirmed the essential features of CO Burnett?s testimony about this exchange
between CO Noseworthy and OM Keating. Once Horan was secured in cell #4, CO Burnett
returned to her post at the other end of the first floor.
Although in charge of the first floor, CO Basar had not been advised that Horan had been
removed from the floor at OM Keating?s request. While at the desk in the hallway near A & B
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Wards, CO Basar heard yelling, mostly cursing, from the area of the second floor. He went to
the bottom of the first floor stairway and from there he observed the escort at the middle of the
stairway. He testified that he saw CO Fredericks in front with one hand on Horan, followed by
Horan, who in turn was followed by COs Orton and Noseworthy on either side of Horan. He
indicated that CO Orton had two hands on Horan and that CO Noseworthy had one hand on him.
CO Basar testified that he observed COs Orton and Noseworthy pushing and pulling Horan
between them and he described their conduct as ?manhandling? him. He indicated that Horan
was swearing but was not doing anything physical. He testified that at one point he heard CO
Noseworthy ask, ?Are you threatening me??
CO Basar testified that as the escort turned left at the bottom of the stairs and proceeded
down the hallway to segregation, he stopped at the laundry door and as he turned away from the
doorway, the next thing he observed was Horan on the floor. He indicated that there was a lot of
activity that took place very quickly and that the event did not last very long. He testified that he
did not see Horan do anything that warranted the takedown and that he did not observe anyone
punch Horan or see Horan strike an officer before he saw Horan on the floor. He indicated that
he observed inmate Carver looking through the laundry door window and that he attempted to
block Carver?s view of the incident.
CO Basar testified that the officers controlling Horan were in different positions at
different times throughout the incident. He indicated that Horan was basically stationary, facing
down on his stomach on the floor. He testified that CO Fredericks was restraining Horan near
Horan?s head and shoulder area and that he was doing this at one point while on the stairs to the
boiler room. He testified that he believed that CO Orton was at Horan?s legs at one point and
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that CO Noseworthy was at Horan?s torso. He testified that he saw CO Noseworthy strike Horan
a few times with a closed fist in the facial and torso areas. He indicated that he also observed
CO Orton strike Horan a few times with a closed fist in the lower torso area. He did not see CO
Fredericks strike Horan. He testified that Horan was cursing at the officers, but was not a
physical threat when the strikes occurred. CO Basar indicated that CO Orton signaled CO
Burnett not to activate the code blue alarm by moving his hand across his neck, but that CO
Burnett did activate the alarm. He testified that there were some additional strikes to Horan after
the alarm was activated. He indicated that at some point he observed CO Noseworthy twisting
the ankle and legs of Horan, and stepping on Horan?s legs. He testified that he observed some
bruising on Horan?s face, but he could not recall where on his face, and red marks on his legs
from having been stepped on. He indicated that he did not observe Horan bleeding. CO Basar
confirmed that once others arrived in response to the alarm, Horan was handcuffed and moved to
the segregation unit. CO Basar followed the escort to the segregation unit but he realized when
he got as far as the shower cell that there were enough officers in the area and he returned to his
work location.
CO Orton testified that on the return escort to the segregation unit, he was immediately
behind Horan and CO Noseworthy was behind him. He did not recall seeing anyone else on the
stairs before reaching the first floor because his focus was on Horan. Specifically, he stated that
he did not recall seeing CO Burnett on the stairs. He indicated that Horan was walking faster
than normal, but not at a constant pace. He testified that Horan was very verbal, speaking in a
loud voice and calling the officers ?fucking goofs?. He testified that CO Noseworthy responded
with vulgarity about six or seven times to Horan during the return escort. He agreed that
responding in this way to an inmate was inappropriate because it could increase the inmate?s
18
hostility, thereby aggravating the situation. He indicated that he did not ask CO Noseworthy to
stop these exchanges with Horan. CO Orton testified that he did not direct any profanity at
Horan.
CO Orton testified that Horan stopped twice during the return escort. The first time was
on the second floor landing. He indicated that he told Horan to keep moving or force may be
used. He said that Horan responded by saying ?I?m going to spin kick you?. CO Orton testified
that he told Horan that he was being ridiculous and directed him again to keep moving. He
indicated that CO Noseworthy told Horan not to threaten staff. He testified that Horan then said,
?You don?t control me, I control you?. CO Orton testified that he briefly put his right hand on
Horan?s left shoulder after Horan took two or three steps so that he would know of his presence.
He indicated that during the return escort CO Noseworthy did not put his hands on Horan before
they reached the first floor.
CO Orton testified that when they moved towards the stairway to the boiler room on the
first floor, Horan continued to be loud and made general threats to officers. He indicated that
Horan stopped for the second time when he reached the end of the railing before the stairway.
He indicated that Horan moved quickly as his left hand grabbed the railing and he began to turn
to the left. CO Orton testified that he thought Horan was making either a move down the stairs
or a move on one of the officers, and that he then recalled his history of unpredictability. He also
considered that the boiler room contained items that could be used as a weapon. CO Orton
testified that he then decided to initiate force and that he moved closer to Horan and quickly
grabbed the back of the security gown at Horan?s shoulder with his closed hands. He indicated
that Horan let go of the railing as he was trying to take him down. CO Orton stated that as Horan
19
pushed back with a lot of force, he noticed CO Noseworthy move around Horan to the
segregation side and he observed Horan?s arm come up and hit CO Noseworthy on the face. CO
Orton indicated that he pushed Horan forward and told him to get on the floor. He testified that
he then noticed CO Fredericks place his hands on Horan. CO Orton stated that he could not
recall exactly how the takedown occurred, but that all three went down to the floor. CO Orton
agreed in cross-examination that Horan did not make a physical gesture against the officers, that
he did not take a stance and that he did not make a direct threat at the officers when he was by
the laundry door.
CO Orton testified that Horan was close to flat on his stomach with his head near the
railing and his feet were through the doorway leading to the segregation unit. He stated that CO
Fredericks was at Horan?s head and shoulder area, CO Noseworthy was at his feet and that he
was around his lower back. He indicated that he tried to get Horan?s arm in order to cuff him.
He indicated that at one point, he looked up and saw CO Burnett by the laundry door and he
believes he told her to ?either help or hit the button?. He also indicated that he might have made
a quick gesture with his hand pointing at CO Burnett or the blue button. CO Orton described
how CO McGhee tried to assist but ended up crushing CO Orton?s head into the door jam. He
testified that Horan?s arms were released eventually, handcuffs were applied and Horan was led
to the segregation unit. He indicated that he did not specifically turn his mind to whether Horan
sustained any injuries, but that he did not observe any.
CO Orton specifically denied a number of matters. He denied that he or CO Noseworthy
pushed and pulled Horan as the escort returned to the first floor. He denied punching Horan
before the takedown or when Horan was on the floor. He testified that he did not observe
20
anyone else punch Horan. He also denied that he made a gesture across his neck to signal CO
Burnett not to push the blue alarm button. When asked in chief why CO Burnett would lie about
these matters, CO Orton indicated that although he had no previous issues with her, he
understood that she had a history of conflict and that she often chose to discredit officers.
OM Keating permitted CO Orton to file an OR about the Horan incident on the following
day. His OR is dated March 12, 2003, with a time of 9:45 p.m. In the subject box, he wrote that
Horan was ?being assaultive towards staff during a move from the operational manager?s office?.
In the body of the OR, he wrote at one point that ?When Horan reached the first floor he began
acting erratically grabbing at the railing and was now making direct threats towards the writer
and the other escorting officer. When in front of the back kitchen door Horan grabbed hold of
the railing, leading down to the boiler room, saying ?fuck off, I hate this place, I told you I?ll kill
myself?. At this time the writer took hold of Horan?s security gown saying ?ok that?s enough
Pat, get on the floor? and attempted to guide the inmate to the floor?? Absent from the OR is
any specific reference to the spin kick comment directed at CO Orton. In his CISU statement,
CO Orton noted that Horan ?has a history of being assaultive??
CO Noseworthy?s description of the return escort was similar in most respects to the
description given by CO Orton. For example, he indicated that Horan was cursing and loud
throughout the return escort to segregation. He mentioned the spin kick comment from Horan
directed at CO Orton and that he told Horan not to threaten an officer. He agreed that he and
Horan were cursing and swearing at each other during the return escort. He stated that these
exchanges consisted of Horan saying, ?fuck you? and he saying ?fuck you? back. He indicated
that Horan initiated each of these exchanges and that he did not agree that his conduct in this
21
regard necessarily served to inflame the situation. In his CISU statement, CO Noseworthy
indicated that CO Orton engaged in the same kind of cursing exchanges with Horan as he did.
CO Noseworthy stated during his testimony that he could not recall if CO Orton was cursing at
Horan and that he may have made a mistake when he indicated as much to the investigator.
CO Noseworthy indicated that he observed CO Fredericks watching the escort from the
doorway of the Young Offender (?YO?) area on the third floor and then saw him begin to follow
the escort. He indicated that he, CO Noseworthy, was following CO Orton and estimated that he
was about eight steps behind Horan. He indicated that he was not able to reach Horan from this
position and he denied any hands on contact with Horan as the escort descended the stairs to the
first floor. He indicated that he did not observe CO Orton with his hands on Horan. CO
Noseworthy testified that he did not see CO Burnett on the stairs, but that it was possible that she
was there, given that his focus was primarily on Horan. He also indicated that he did not see
anyone at the bottom of the stairs on the first floor when they reached that location.
CO Noseworthy testified that as Horan reached the laundry door on the first floor, he
appeared to grab the railing with his left hand and turned left as if going down the stairs. He
stated that CO Orton then moved closer to Horan who appeared to have his right hand on the
doorframe. He indicated that as he moved to the other side of Horan, Horan swiped him on the
face. He testified that by the time he moved around Horan, CO Orton put his hands on Horan
and took him to the floor. He indicated that he did not know if CO Fredericks assisted in the
takedown. CO Noseworthy testified that the takedown took a matter of seconds and that Horan
was on the ground in ?a blink of an eye?. He indicated that he positioned himself at Horan?s feet
and attempted to turn him over by crossing Horan?s legs. He also stated that he twisted his ankle
22
for pain compliance by using one hand on Horan?s toe and the other on the heel of his foot. He
testified that he did not punch Horan at any time, and he indicated that he certainly could not
have reached Horan?s face from his position at Horan?s feet, particularly when COs Orton and
Fredericks were in front of him. CO Noseworthy also indicated that he did not see CO Orton
punch Horan. He testified that others arrived at the scene and that the incident essentially ended
when handcuffs were placed on Horan. CO Noseworthy indicated that CO Orton helped Horan
to his feet and he was led to segregation.
CO Noseworthy indicated that he and others followed as Horan was taken to the
segregation unit. He stated that as they moved down the hallway, Horan expressed his anger
about the way his ankle was handled. When they arrived at segregation, CO Noseworthy was
beside Horan near the shower cell as they were waiting for a different cell to be prepared for
Horan. CO Noseworthy indicated that Horan noticed blood on his face and said, ?See John, look
what happens.? CO Noseworthy testified that he did not notice any injuries to Horan. CO
Noseworthy described his interaction with OM Keating when he tried to enter cell #4. He
testified that he wanted to enter the cell to assist CO Orton and that he did not realize it was OM
Keating who was pulling on his shirt, until he turned around.
OM Keating also let CO Noseworthy write his OR the next day. CO Noseworthy?s OR
reflects that he wrote it on March 12, 2003, at 1:00 p.m. His OR is very brief. No one in
management asked him to prepare another OR containing a more detailed account of what had
occurred. After noting that he was assisting another officer escort Horan to segregation from the
I/C?s office, the OR describes the incident as follows:
I reached the first floor walking directly behind the escorting officer when I/M Horan
began to act very agitated and started to threaten staff. The other officer and I decided to
23
restrain I/M Horan and place handcuffs on him. I/M Horan immediately began to resist
so he was taken to the ground with the assistance of other officers. At the same time I/M
Horan reached up and clawed me in the face. I/M Horan was cuffed and then escorted to
seg, placed in cell #4. I then left the area to receive medical attention. Shift supervisor
Keating was present during the incident.
Investigator Micucci interviewed CO Noseworthy on April 10, 2003. In his CISU
statement, CO Noseworthy indicated that once the escort arrived at the laundry door on the first
floor, ?CO Orton and I decided to place the inmate in handcuffs because of his demeanor seemed
to be progressing to a higher level?. When the investigator questioned him on the issue of
handcuffs, CO Noseworthy indicated that he and CO Orton did not converse about putting
handcuffs on Horan, but that they both by instinct recognized the situation now required
restraints. CO Noseworthy described Horan turning around and CO Orton grabbing the back of
his security gown and then Horan grabbing the doorframe with his left hand and the railing with
his right hand. He then told the investigator that he tried to free both of Horan?s hands. He
indicated that after freeing one hand and then eventually the other, Horan went to the floor and as
he did so, swiped him in the face. He stated that at one point when Horan was on the ground that
he was ?off to the right of the inmate facing him?.
In his statement to the investigator, CO Noseworthy also described a conversation he had
with Horan that took place about two weeks after the incident when he was assisting with
breakfast in segregation. Without detailing his description of their entire conversation, I note
that he told the investigator that Horan had told him that he was ?having a bad day? on the day of
the incident. When CO Noseworthy told him that he could not do what he did, Horan said, ?I
know?. When CO Noseworthy then told him that another officer could have kicked his head in
for scratching his face, Horan said, ?I know, I?m sorry? and then offered his hand. CO
Noseworthy indicated that he shook his hand and again Horan said he was sorry. CO
24
Noseworthy did not recall reporting this conversation to anyone and there is no indication that he
filed an OR about it.
When asked during his CISU interview why anyone would make false statements about
his role in the Horan incident, CO Noseworthy in essence indicated that he was a very good
officer, well trained and well liked and therefore he had a very good chance of getting a
classified position if one came up. He indicated that there were unclassified officers at the WJ
who have caused trouble and who realize that their chances of succeeding in a competition were
not good. CO Noseworthy asserted that these officers had an interest in making officers like him
look bad by making allegations against them. When asked by the investigator if he had any
specific staff in mind, CO Noseworthy mentioned COs Burnett and Basar, although he conceded
that he had ?no hard evidence?. CO Noseworthy reiterated this perspective during his testimony.
Horan?s loudness while he was on the third floor caught the attention of COs Fredericks
and Foster. CO Fredericks commenced his employment at the WJ on March 1, 1982. On the
day of the incident, he was working on the third floor on a suicide watch of a YO in the Secure
Isolation Unit. He testified that he heard loud yelling from an inmate who was mad and agitated.
When CO Beltrano relieved him for a break, he decided to follow the return escort at a
reasonable distance. He indicated that he did not position himself in front of Horan at any time
as the escort proceeded down to the first floor at a slow and regular pace. CO Fredericks
testified that Horan was constantly loud and swearing during the escort, but that he did not hear
him threaten officers. He indicated that he did not hear COs Orton and Noseworthy
communicating with Horan, nor did he see them engage in any physical contact with Horan, until
25
they reached the first floor. He testified that he did not hear CO Noseworthy ask Horan if he was
threatening an officer.
CO Fredericks testified that he was close behind the escort when it reached the stairway
to the boiler room on the first floor. He indicated that Horan stopped and while still yelling, he
began to swing his arms around, with open hands. He indicated that he did not see Horan
swinging his arms with closed fists and that he did not see him swing at anyone. It appeared to
CO Fredericks that Horan did not want to go to the segregation unit. He stated that he did not
see Horan hit an officer, but he later noticed a scratch on CO Noseworthy?s nose, with some
bleeding. He testified that once Horan began swinging his arms, COs Orton and Noseworthy
each grabbed one of Horan?s arms and he moved in to assist. CO Fredericks testified that he
covered Horan?s eyes and that Horan was taken to the floor in seconds. He stated that he did not
see Horan grab the railing and that the officers did not give any directions to Horan immediately
prior to the takedown. CO Fredericks testified that no one punched Horan before the take down.
When asked in chief to explain the reason for the takedown, CO Fredericks said that the
takedown was necessary because Horan flung his arms out and did not want to move.
CO Fredericks testified that Horan went down on his stomach, with his hands under him.
He indicated that he was at Horan?s head and shoulder area, trying with some difficulty to hold
Horan down on the floor. He indicated that he had to hold on to the railing and push down on
Horan in order to secure him on the floor. He stated that CO Noseworthy was at Horan?s feet
and CO Orton was at his side, trying to get Horan?s arms out. He indicated that he did not hit
Horan when he was on the floor and that he did not see COs Orton and Noseworthy punch
Horan. He testified that they would have been unable to hit Horan in the head because of the
26
way he was positioned over Horan. CO Fredericks followed Horan to the segregation unit once
he was secured with handcuffs. He testified that Horan was walking without difficulty and that
he did not observe any marks on him. CO Fredericks apparently did not hear or observe
anything out of ordinary while he was in the segregation unit.
CO Fredericks testified that he completed an OR on the day of the incident, but it was
lost. He was asked to prepare another OR by SM Trudell, which he did on March 27, 2003, at
1:00 p.m. In this OR, he wrote that he decided to follow the escort because the inmate was
?agitated and belligerent?. He wrote that at the stairwell to the boiler room, the inmate ?decided
to resist by swinging his arms around in an offensive manner swearing and threatening. Officers
Orton and Noseworthy each grabbed an arm trying to control his attack?.
When interviewed by the CISU on April 4, 2003, CO Fredericks was not a subject officer
in the investigation. He indicated in his CISU statement that Horan was swearing, threatening
and totally out of control as he was being led down the stairs to segregation. He stated as well
that Horan appeared to be ?swinging his arms aggressively towards the two officers who were
escorting him?. When asked about what Horan said that was threatening, CO Fredericks said, ?It
wasn?t threatening, it was more belligerent?.
CO Foster has a continuous service date of February 20, 1989. She was working on the
third floor when she saw an agitated and angry Horan being escorted into the IC?s office. She
followed the escort and went into the classification office, next to IC?s office, and from there she
heard Horan yelling. She then saw him leave the IC?s office quickly, followed by the escorting
officers. CO Foster testified that she followed the escort out of a concern for the safety of her
27
rd
colleagues. She indicated that when she reached the 3 floor landing, the escort had reached the
nd
bottom of stairs on the 2 floor. She followed the escort half way down to the first floor and
then returned to the third floor when she felt that the situation was under control. She testified
that she did not have the escort in her sight the entire time. She indicated that Horan was yelling
as he was going down the stairs and that one of the officers told him to calm down and to slow
down. She stated that she could not recall seeing any physical contact between the escorting
officers and Horan. She also testified that she did not hear Horan direct any threats at the
escorting officers.
CO Foster testified that she heard the code blue alarm as she returned to the third floor
landing. She indicated that she then ran to the first floor where she saw officers attempting to
secure Horan, who was on the floor. She described Horan as being half on his back and half on
his left side, with his head towards the railing. She indicated that COs Orton and Noseworthy
were on the segregation side of the doorway, each holding on to one of Horan?s legs. She
testified that CO Fredericks was near Horan?s shoulders trying to turn him over on his stomach.
She indicated that CO Fredericks was repeatedly shoving at Horan?s shoulder blades in an effort
to achieve his objective. In cross-examination, she made it clear that she did not consider
anything CO Fredericks did to Horan to be inappropriate in the circumstances. She also
indicated that she did not see COs Orton or Noseworthy strike Horan and that she did not notice
any injuries sustained by Horan. She indicated that Horan was secured in handcuffs and he was
then escorted to segregation. She did not follow the escort to the segregation unit.
CO Foster provided the CISU investigator with a statement on May 13, 2003. She
initially told him that CO Fredericks was pushing on Horan?s right shoulder and hip to try to
28
push him on his stomach. Later, when asked about CO Fredericks striking Horan, she stated that
CO Fredericks hit Horan about four times on the shoulder blades and that she could not see
whether it was with a closed fist or not. She also told the investigator later on that there was no
justification for the strikes. She also described how she and CO McGhee were involved in
freeing Horan?s arms so that COs McGhee and Noseworthy could place handcuffs on him.
CO Foster did not file a timely OR on this incident. She indicated that she did not
prepare one because she played a minor role in the incident and assumed that others who were
directly involved would be filing reports. She was issued an allegation letter for not filing an OR
and her allegation meeting with Deputy Ormsby was held on December 10, 2003. Dominic
Bragaglia, the Local Union President, attended the allegation meeting as her representative. CO
Foster testified that it was around the time of this meeting that Mr. Bragaglia showed her the
findings in the Report, particularly the indication from the investigator that she ?stated that
inmate Horan was being controlled by COs Noseworthy and Orton when she observed CO
Fredericks striking the inmate?. She indicated that she raised a concern about this reference with
Mr. Bragaglia because it was not accurate and because she did not want to be considered a ?rat?.
She testified that Mr. Bragaglia told her not to worry about it, but at her insistence, he arranged
for her to meet with CO Fredericks at the Union hall. CO Foster indicated that when she
explained her concern to CO Fredericks, he laughed and told her not to worry about it. Mr.
Bragaglia told her that he would explain the situation to COs Noseworthy and Orton. CO Foster
testified that she did not experience any adverse consequences due to the finding in the Report.
At the allegation meeting on December 10, 2003, Deputy Ormsby requested CO Foster to
write an OR on the incident. In her OR dated December 10, 2003, CO Foster places COs
29
Noseworthy and Orton at the feet of Horan, with CO Fredericks at Horan?s shoulders. She wrote
that while CO Fredericks was directing Horan to roll over onto his stomach, he hit him in the left
upper chest and pushed on his left shoulder to force him to roll over. She then wrote that CO
Fredericks struck Horan four or five times in the shoulder area to distract him so they could free
up his arms. She wrote that these efforts by CO Fredericks were justified because of the
resistance offered by Horan and that she had conveyed this information to the CISU investigator.
She wrote that she did not tell the CISU investigator that Horan was controlled by COs
Noseworthy and Orton while CO Fredericks struck him.
A number of other persons responded to the code blue alarm. Like CO Foster, they
arrived at the first floor laundry door near the conclusion of the incident. The others responding
to the alarm included OM Keating, SM Trudell, RN Imeson and CO McGhee.
CO McGhee was one of the last persons to appear on the scene because his duties on the
second floor security hall prevented him from responding earlier. He testified that he had
noticed Horan walking in a security gown with an escort from the second to the first floor. He
indicated that the escort was walking at a normal pace and that there did not appear to be a
problem. Soon after, he heard yelling emanating from the first floor. As he went to the end of
the security hall and looked down the stairs, he saw CO Burnett running to and hitting the blue
alarm button. Once relieved from his post by CO Gray, he responded to the alarm. CO McGhee
indicated that he jumped the railing to assist CO Orton in securing handcuffs on Horan. He
indicated that CO Orton began screaming that he was pinching him in the doorway, so he backed
away. He indicated that the officers secured Horan in very short order and took him to the
segregation unit. CO McGhee followed the escort to segregation and left as soon as Horan was
30
placed in cell #4. CO McGhee testified that the only injury he observed was the one to CO
Noseworthy?s nose.
CO McGhee did not write an OR on the day of the Horan incident. He testified that he
did not think that his involvement warranted a report. He did complete an OR after he was asked
to do so by SM Trudell. He also provided a statement to the CISU investigator.
SM Trudell worked the 8:00 a.m. to 4 p.m. shift on March 11, 2003. He indicated that he
attended the segregation unit earlier in the day when Horan attempted suicide. He testified that
he did not recall many details of this event, but thought that it was not a serious suicide attempt.
He did not write an OR for the incident.
SM Trudell also responded to the code blue alarm later in the day. He testified that when
he arrived at the area of the laundry room door, Horan was struggling for a short time, but was
then secured. He observed Horan on the floor, with CO Orton at his upper body and CO
Noseworthy at his legs. He indicated that CO Fredericks was standing when he arrived and not
in physical contact with Horan. He estimated that Horan was only on the floor for five to ten
seconds after he arrived on the scene. He indicated that Horan was yelling about his leg being
twisted and saying, ?Let go?, and that staff were telling him to relax and calm down. He noticed
what to him appeared to be a scratch on CO Noseworthy?s nose. He indicated that the officers
quickly brought Horan to a standing position and then led him to the segregation area. As far as
he could tell, Horan was walking without any obvious impairment. He indicated that he felt that
the handling of the incident by staff was ?pretty good?.
31
SM Trudell followed Horan to the segregation unit. He indicated that while waiting for a
different cell to be prepared for him, Horan said to CO Noseworthy, ?Are you happy now?? SM
Trudell described what occurred when CO Noseworthy went to enter the cell and was instructed
not to by OM Keating. SM Trudell testified that he also told CO Noseworthy to leave the area
and that ?It was not worth it?.It is clear that OM Keating and SM Trudell recognized that CO
Noseworthy was upset and that there was some potential for a confrontation if he remained close
to Horan. SM Trudell indicated that he did not observe anything about Horan?s condition that
stood out. He also stated that he did not specifically recall looking for any physical problems
with Horan.
On the following day, OM Maccarone advised SM Trudell that Horan wanted to press
charges against CO Noseworthy. SM Trudell went to speak with Horan, who was then in an
assault cell for one person on the third floor. SM Trudell testified that Horan told him that he
wanted to charge CO Noseworthy because of the way he twisted his leg, almost breaking it. SM
Trudell stated that Horan only referred CO Noseworthy and that he did not say that anyone hit
him. He indicated that Horan also told him that he did not want to be around CO Noseworthy
because he ?had it out for him?. SM Trudell told Horan that he would see to it that CO
Noseworthy was not assigned to a post near where Horan was located. SM Trudell indicated that
Horan was pleased with this result and that he told SM Trudell that he would forget the charges
as long as CO Noseworthy was not going to be around him. SM Trudell testified that Horan
expressed a concern that CO Noseworthy could get him again if he complained about him. SM
Trudell indicated that he did not observe any sign of injury to Horan when they met for about ten
to fifteen minutes on this occasion.
32
SM Trudell did not file an OR about the Horan matter until March 24, 2003. He
explained that he did not write an OR on the date of the incident because ?they were lax with
reports?. His OR and his CISU statement were essentially consistent with his testimony.
RN Imeson has been a nurse at the WJ since May of 1978. As one would expect, her role
at the WJ is to assess the medical needs of inmates and to provide care. The RN usually is the
person who initiates an Accident & Injury Report (?A&I Report?). She was working a 2:30 to
10:30 p.m. shift on March 11, 2003. When she arrived at the health care unit on the third floor to
start her shift, she was informed by the day shift RN that Horan was on constant suicide watch in
the segregation unit.
RN Imeson heard loud voices emanating from somewhere on the third floor, but when
she left her work location to see what was going on, there was no one around the third floor
landing. Soon after, the code blue alarm sounded and she responded without waiting to see if
she was needed. She observed a number of officers by the laundry room door. She indicated
that many of them quickly dispersed and that she then noticed Horan, who lives in her town. She
testified that as Horan was brought to a standing position by CO Orton, she asked him if he was
okay and he said that his right ankle was sore. She indicated that Horan had a red spot on his
nose and a small cut on his left thumb, but she did not notice any bleeding from the cut. She
walked three or four feet behind as Horan was taken to segregation. She overheard Horan tell
CO Orton to watch his leg. It appeared to her that Horan was ?walking okay?. She indicated
that she waited by Horan near the segregation shower cell as cell #4 was prepared for him. She
indicated that Horan asked her at that time not to let them hurt his foot. She stated that she told
him to calm down and that he was then placed in cell #4. She testified that she observed what
33
occurred between OM Keating and CO Noseworthy as CO Noseworthy attempted to enter cell
#4. At the end of their exchange, OM Keating asked her to attend to CO Noseworthy if she was
satisfied that inmate Horan was okay. She then went to the health care unit with CO
Noseworthy, confident that Horan was safe. She provided CO Noseworthy with first aid for the
scratch on his nose.
She returned to the segregation unit to see Horan at approximately 3:50 p.m. in order to
complete an A&I Report. She asked Horan to stand at the back of the cell and to walk as she
watched from the small opening in the cell door. She did not give Horan a pen to fill in his
statement on the A&I Report because he was on a suicide watch. She testified that after she
asked him if he wanted to make a statement, Horan responded and she recorded his response on
the A&I Report as follows: ?My ankle swollen, my nose was hit?. In the box on the form for her
comments, RN Imeson indicated that she saw Horan at the laundry door on the first floor, that he
was then moved to segregation, that he had red bruising on his nose with no swelling, that there
was a 0.5 cm laceration on his left thumb and tenderness on his right ankle. She also noted that
there was no treatment required and no loss of consciousness. In the appropriate box, CO
Noseworthy wrote on March 12, 2003 the following: ?I/M Horan attempted to assault an officer
and was taken to the ground and cuffed. I/M Horan was then escorted to seg.? On March 17,
2003, Dr. Child filled in the physician?s box with the following notation: ?Above injuries have
healed. Still graze right lower leg?.
RN Imeson saw Horan again later that evening and noted that he was in good spirits
while talking to CO Beaul. During cross-examination, she indicated that Horan appeared to be
okay each time she saw him on March 11, 2003. She indicated that it was her impression that
34
the red mark on his nose was caused by pressure from contact with the floor and not likely from
a punch, because there was no blood. She agreed that punches to the face usually leave some
marking and swelling and that she did not observe any marking and swelling on Horan. She
indicated that Horan did not tell her that he had been punched in the head.
RN Imeson indicated that during the evening of March 11, 2003, she was on the first
floor speaking with CO Burnett, and that they were soon joined by COs Basar and Yeryk. She
testified that she recalled CO Burnett saying that too much force was used on Horan and that was
why she hit the blue alarm button. CO Burnett told her that she hit the alarm so that others
would come and take the situation out of her hands. RN Imeson stated that CO Burnett expressed
a concern about the repercussions that would follow because she hit the alarm button. RN
Imeson testified that she told CO Burnett that she did what she thought was appropriate at the
time and that she should not rethink her actions.
On the following day, RN Imeson worked the day shift from 7:00 a.m. to 3:00 p.m.
Before she saw Horan on that day, she went upstairs and made a passing comment to OM
Maccarone that they should keep an eye on Horan because ?they might try to get him again? and
that OM Maccarone said ?okay?. She also indicated that Horan told her that the officers were
out to get him because he had given a hard time to the arresting officer, one of their friends. RN
Imeson testified that she was in the segregation unit to give Horan his medication when he was
required to attend video court within the WJ, near A&D. She testified that she noted earlier that
CO Horan was in A&D and that for that reason she decided to go with Horan to act as a buffer
and to ensure that ?nothing escalates?. She observed that the officers in A&D, including CO
Orton, were wearing black gloves that are worn when doing searches, not the usual latex gloves.
35
Since this was the first time in twenty-eight years that she observed three officers with black
gloves, she felt that there had been some potential for escalation. She indicated that Horan was
returned to his cell in segregation without incident.
RN Imeson did not write an OR on the day of the Horan incident. She was asked to write
one by Deputy Ormsby and she did so on March 24, 2003, at 2:40 p.m. She gave a statement to
the CISU investigator on April 16, 2003. When asked by the investigator if Horan ever
mentioned that he was assaulted, she said, ?Yes but he didn?t say by whom?. She explained her
failure to submit a timely OR by saying that the practice had fallen by the wayside since Deputy
Patrick left the WJ.
OM Keating was not called to testify in this proceeding. I understand that OM Keating
was discharged during the early stages of this case. OM Keating prepared two documents
relating to the Horan incident, both of which were entered as exhibits. He prepared an Offender
Incident Report on March 11, 2003 and he filed a late OR on March 27, 2003, many days after
the Horan incident. These documents contain information that has been addressed by other
witnesses.
As noted previously, OM Keating was issued a ten day suspension by Superintendent
Wasylyk for conduct relating to the Horan incident. Superintendent Wasylyk concluded that the
following allegations against OM Keating had been substantiated:
1)That on Tuesday, March 11, 2003, you exercised poor judgment when you decided to
have inmate Horan escorted to your office to assess whether he was stable.
2)That on Tuesday, March 11, 2003, you failed to ensure all use of force protocols were
completed; failed to take photographs of inmate Horan?s injuries;
36
3)That on Tuesday, March 11, 2003, you failed to submit an Occurrence Report
regarding your involvement/observations concerning the incident with inmate Horan.
As noted previously, CO Beaul was posted to the segregation unit during the afternoon
shift on March 11, 2003. He was there performing a constant suicide watch on Horan and
another inmate. He was present when COs Noseworthy and Orton came to take Horan to the
IC?s office. Although the officers told him that OM Keating said that handcuffs were not
required during the escort, CO Beaul testified that he contacted OM Keating to confirm this
information because the circumstances would normally require the use of restraints. CO Beaul
indicated that OM Keating told him over the radio that he wanted Horan brought up now with no
handcuffs. CO Beaul indicated that Horan overheard this conversation and that he calmly left
with the officers. He could not recall any conversation between the officers and Horan before
they left for the IC?s office. CO Beaul indicated that he has known Horan for quite a few years.
He stated that Horan was depressed at that time. He described him as a vocal person with more
bark than bite, and not normally a fighter.
It was not long before CO Beaul heard a code blue alarm, along with yelling and
screaming. He indicated that OM Keating soon appeared in segregation and he wanted Horan
placed in cell #4 for security reasons. CO Beaul took the steps necessary to switch Horan into
cell #4. He also described the exchange between CO Noseworthy and OM Keating which
resulted in CO Noseworthy leaving the area. CO Beaul testified that once everyone left the area,
including the nurse, he discussed the incident with Horan. CO Beaul testified that after some
conversation, Horan told him that he had had enough and that he took a swipe and hit CO
Noseworthy on the way back to segregation because he wanted to get the first strike in. CO
Beaul indicated that Horan said that CO Noseworthy had given him a hard time in G ward a
37
couple of weeks ago. When Horan described CO Noseworthy as a ?wannabe cop?, CO Beaul
told him that he believed he was referring to CO Shannon Tennant and Horan told him that he
could be right. CO Beaul told Horan that the IC would see him and would ask him if he wanted
to pursue charges. He stated that he told Horan that CO Noseworthy may pursue charges against
him. CO Beaul indicated that Horan told him that he did not want to pursue charges. Their
conversation ended when CO Burnett showed up to relieve CO Beaul for the dinner break.
CO Beaul testified that Horan was not injured as far as he could tell. He stated that
Horan did not tell him that he had been beaten and that he did not complain about what had
happened to him. During cross-examination, CO Beaul agreed that Horan did not tell him that
he had not been hit either. CO Beaul did not complete an OR about the Horan incident until
March 26, 2003, after he had been asked to do so. The CISU investigator interviewed him on
April 16, 2003.
CO Burnett also testified about a conversation that she had with Horan during the dinner
hour on March 11, 2003, when she was either serving or taking dishes away. She testified that
Horan told her that he wanted to press charges and wanted to see the IC. She told him that the IC
was aware of this and would see him when time permitted. She indicated that Horan said he
knew that she was there during the incident and asked her if she would be a witness on his
behalf. She testified that she told him that she could not be a witness for him because she could
not go against coworkers and survive. CO Burnett indicated that Horan told her that he
understood.
38
CO Burnett testified that CO Basar made some comments about the Horan incident when
she was in the lunchroom for her dinner break on March 11, 2003. She indicated that CO Basar
told her in a loud voice that he did not condone beating on inmates. CO Burnett testified that
other COs were in the lunchroom at the time, including CO McGhee. She indicated that CO
Basar was also upset about not being advised when Horan was taken from his floor. She stated
that she did not respond to CO Basar?s comments because she did not want any repercussions
from other officers.
COs Burnett and Basar did not prepare an OR about the Horan incident on March 11,
2003, as required by institutional rules. They each testified that they discussed writing an OR on
that day and that they agreed not to write one. They indicated that they were not asked to write
one and that they were reluctant to include all of the facts about the incident in an OR, fearing
reprisal. When asked about their specific concerns during their testimony, they expressed them
somewhat differently, but their responses reflected a similar theme. They indicated that they
were concerned about reprisals from officers who believed in a code of silence among officers.
They were reluctant to tell the Employer about the wrongdoing of fellow officers for fear of
being labeled a ?rat?. They believed that this label would result in their being shunned, bullied
and harassed by the persons on whom they reported, as well as their friends and other staff who
believed in a code of silence. They both were concerned about their safety, predicting that some
staff might not provide assistance or might respond slowly in providing assistance.
As noted previously, COs Burnett and Basar did file ORs about the Horan incident
subsequent to March 11, 2003. They were influenced to do so by events that took place on
March 12 and 13, 2003. They formed the view that some officers reached the conclusion that
39
they had already filed ORs or had spoken to management about the Horan incident and that these
officers were treating them as if they were ?rats?. They felt that they might as well do the right
thing and file ORs about the incident, particularly if they were going to be treated as if they had
reported on fellow officers.
CO Basar worked the 7:00 a.m. to 7:00 p.m. shift on March 12, 2003, the day after the
Horan incident. As he waited for the pre-shift muster from the OM in the lunchroom, CO
Beltrano asked him if he could speak to him outside the lunchroom. CO Basar declined his
request. CO Beltrano soon returned and again asked if he could talk to him. CO Basar stated
that when he again declined, CO Beltrano told him in a serious way that ?you will see?. CO
Beltrano did not respond when CO Basar asked him what he meant by that comment. Shortly
after CO Beltrano left, CO Noseworthy asked him to come out of the lunchroom and they went
out into the security hall area where CO Noseworthy confronted him about the previous day. CO
Basar indicated that CO Noseworthy asked him if he was on management?s side. He told him
that he was on nobody?s side. CO Basar testified that CO Noseworthy accused him of telling
management that he took Horan off the floor and beat him, that he referred to Horan as a PC and
some other things which he could no longer recall. He stated that CO Noseworthy was upset and
told him that he had alienated himself. CO Basar concluded that CO Noseworthy assumed that
he had reported him to management over the Horan incident. He testified that he told CO
Noseworthy that he stood alone and that he was on no one?s side.He told him that he did not
appreciate that Horan was removed from the first floor without his knowledge and was then
beaten. He also told him that he did not condone what happened and did not need friends like
that ?to get merit?. He testified that he told CO Noseworthy that, if he were a rat, several people
would have probably lost their jobs given what occurred several months ago when intermittents
40
were beaten and threatened by staff. The conversation ended when CO Basar walked away and
returned to the lunchroom. The only thing CO Noseworthy was asked in examination-in-chief
about this conversation is whether he asked CO Basar whose side he was on. He denied that he
made that comment to CO Basar. During cross-examination, CO Noseworthy testified that all he
recalled about the conversation outside the lunchroom was that he asked CO Basar if he was
writing a report and why, and that CO Basar told him that he ?was sick of this bullshit?.
CO Basar testified that on March 12, 2003, OM Maccarone told him that not many
reports came in on the Horan incident. He also indicated that OM Taylor told him that he should
write an OR. CO Basar decided to write an OR because of OM Taylor?s advice and because he
was being accused of reporting the Horan incident to management anyway. He drafted some
notes on the evening of March 12, 2003 and he wrote the OR on March 13, 2003, between 12:15
and 1:00 p.m., in the ?Quiet Room? at the WJ, a room used by staff to write reports. He
indicated that he did not discuss the contents of his OR with CO Burnett and that he did not tell
her he wrote an OR about the Horan incident until days after he submitted his OR. CO Basar
testified that he found it difficult to submit the OR because he did not really want to do it, given
the potential consequences.
In his OR, CO Basar refers to Horan?s suicide attempt, what I have been calling the
Horan incident and his conversations with COs Beltrano and Noseworthy on March 12, 2003.
He specifically noted what he said to CO Noseworthy about the incident with intermittents that
occurred months before. He ended his OR as follows: ?In closing, I regret to have to go out of
my way to report this occurrence, and as a peace officer I am obligated to report my facts
observed to management as this has been on my conscience, even though I was indirectly
41
involved, and has affected me mentally and physically through sleepless nights and sickness due
to being uncomfortable with the whole occurrence?. CO Basar gave his statement to the CISU
investigator on March 23, 2003.
CO Burnett was posted on the third floor on the 8:00 a.m. to 8:00 p.m. shift on March 12,
2003. She testified that soon after arriving at her post, CO Basar came to the third floor and told
her that he just had been confronted by COs Beltrano and Noseworthy. She indicated that he
was shaking and that he briefly explained what had happened.CO Basar told her that he
believed the confrontation with them had occurred because they believed that he had ?written
them up?.
CO Burnett described some events that took place on the day following the Horan
incident. She testified that as she went up and down the stairs, COs Orton, Noseworthy, Heggie,
Baker and Mitchell made it difficult for her to get around them. She indicated that they would
not move out of her way and that she had to maneuver her way around them, where in the past
they would simply move out of the way. CO Burnett considered this behaviour a bullying tactic.
CO Burnett testified that when in the lunchroom she heard the words ?rat? and ?code blue bitch?
directed at her. She indicated that these words were made with a disguised voice and a high
pitch so that she was unable to tell who made the comments. She indicated that starting on
March 12, 2003, one or more persons interfered with her radio transmissions. When she pressed
the button on her radio to transmit, someone would press the button on their radio repeatedly,
causing a clicking sound that meant her transmissions were not understood. She testified that
this problem had not occurred before March 11, 2003, but that it occurred with considerable
frequency after the Horan incident. She indicated that she believed the radio interference
42
happened most frequently when she was on a shift with COs Beltrano, Orton and Noseworthy.
She testified that she observed that CO Basar also experienced the same problem when he used
his radio. CO Burnett indicated that the radio interference affected her ability to do her job and
created a safety issue.
CO Burnett testified about what she characterized as a troubling event that occurred
around 5:50 p.m. on March 12, 2003. Without referring to all of the details of this incident, I
note that CO Burnett testified that as she walked through a doorway with a heavy steel door
towards L Ward, CO Mitchell swung the door closed, causing the door to hit her back and
shoulder. She indicated that as she tried to open the door to speak to him, OM Mitchell kept
pushing the door shut in her face and he eventually told her that a YO was changing. He was on
a constant watch in the YO area at the time. A short time later, IC Maccarone told her to write a
report because COs Mitchell and Gray were accusing her of being insubordinate to a senior
officer. CO Burnett indicated that she became quite upset at this turn of events and as a result,
she left the WJ at 6:30 p.m. and went home early. She testified that as she was waiting at the
front entrance for the door to be unlocked, CO Noseworthy appeared at the opposite end of the
entrance and asked her if she was going to put everything on paper. She indicated that she told
him to mind his own business and she left once the door was unlocked. CO Burnett testified that
she considered his comment harassment and that it made her uncomfortable.
During of evening of March 12, 2003, she called Mr. Bragaglia and discussed with him
her encounter with CO Mitchell and the direction from OM Maccarone to write an OR. He
advised her not to accept any shifts for a while, presumably until things settled down. He also
told her that she could come to the Union hall the next day and fax her OR to the Employer from
43
there. CO Burnett took his advice. She was offered shifts for March 13 and 14, 2003 and turned
them down. In an OR dated March 13, 2003, OM Tighe notes that he called CO Burnett early on
March 13 for a shift on that day. He wrote that CO Burnett declined the offer and had told him
that Mr. Bragaglia had told her not to take any shifts ?until things were rectified?. OM Tighe
also noted in this OR that she told him that the incident on March 12 with OM Mitchell crossed
the line. CO Burnett prepared her OR on her encounter with CO Mitchell at home that evening
at 9:30 p.m. In the subject box, she wrote ?Harassment and Assault from Officer Bill Mitchell?.
During the evening of March 12, 2003, CO Burnett also talked to a Union advisor from
Toronto whose name she had previously received from Mr. Bragaglia. She discussed both the
encounter with CO Mitchell and what she felt was behind it, as well as the Horan incident. CO
Burnett testified that she and the Union advisor concluded that both matters were related and that
she should file ORs about both of them.
CO Burnett did attend at the Union hall on March 13, 2003 to fax her OR about her
encounter with CO Mitchell.She indicated that she discussed the Horan incident with Mr.
Bragaglia and told him that she had to write an OR about it. CO Burnett testified that Mr.
Bragaglia told her not to write up the Horan incident because she would never survive. She
indicated that when she again told Mr. Bragaglia that she had to write one, he said, ?I?m telling
you not to do it?.
CO Burnett wrote her OR on the Horan incident at home that evening at 11:00 p.m. She
testified that she did not tell CO Basar that she was going to write one and that he did not tell her
that he had written one. She indicated that she only discovered that he had written an OR a
44
couple of days later. CO Burnett did not fax her OR about the Horan incident to the Employer
because she felt that she should bring this one in personally, which she did on her return to work
on March 18, 2003. She indicated that she also took the extra time to think about whether ?she
should follow through with it?. CO Burnett gave her statement to the CISU investigator on
March 26, 2003.
As noted previously, COs Burnett and Basar were concerned about the consequences of
breaking the code of silence. The evidence illustrates that their concerns in this regard were
warranted. They both testified about subsequent events that from their perspective could only be
linked to the fact that they reported the misconduct of fellow officers. I find it unnecessary to
refer to these events in any detail. I simply note that the interference with their radio
transmissions continued for some time. They indicated that the attitude and conduct of some
officers towards them changed in a negative way. CO Burnett had two more encounters with CO
Noseworthy, one on April 2 and the other on May 2, 2003, which she believed constituted
harassment on his part. The Employer issued CO Noseworthy a letter of counselling for making
an inappropriate comment to CO Burnett during their May 2, 2003 encounter. CO Basar had an
encounter with CO Noseworthy on April 23, 2003, that upset him and caused him to leave work
due to illness. A picture from the Windsor Star of a man holding a dead rat was posted at the
WJ. The words under the picture were ?Rats invade east end?. The word ?east? was scratched
out and it was replaced in handwriting with the word ?west?, which happens to be where the WJ
is located. A notice about the Employee Assistance Program was posted at the WJ with a
headline that read ?ANYONE STRESSED OUT REMEMBER E.A.P.? The word ?ANYONE?
was scratched out and replaced by the words ?Everyone is?. Someone wrote at the bottom of the
notice the words ?TOO MANY RATS HERE?. Graffiti with the initials ?AB? and the word
45
?RAT? in large letters immediately underneath appeared near the main kitchen door. Just after
midnight on May 28, 2003, O.P.P. constables attended at CO Basar?s residence in response to a
call to Crime Stoppers. It appears that a caller claimed CO Basar was storing an illegal weapon,
which was not the case. CO Basar was unable to discover who made the call, but he believes
that only certain employees at the WJ possessed the knowledge that could lead to making such a
call to Crime Stoppers. A letter dated May 28, 2003, to Mr. J. Rabeau, Deputy Minister,
Correctional Services, from Ms. L. Casselman, President of O.P.S.E.U. was posted at the WJ by
an unknown person. In essence, the letter indicated that CO Burnett had been ?targeted for
harassment and intimidation over the past several months?. Ms. Casselman requested an
independent investigation into CO Burnett?s allegations. CO Burnett was troubled by the posting
of this letter, as was Mr. Bragaglia. COs Burnett and Basar filed reports on many of the events
referred to above. Apart from Mr. Noseworthy?s direct contact with COs Burnett and Basar,
there is no proof that any of the grievors were responsible for those matters referred to above that
occurred after March 11, 2003.
As these events occurred, COs Burnett and Basar testified that they became increasingly
stressed. They both indicated that they had trouble sleeping. CO Basar testified that he missed
time from work simply to avoid further conflict. Taking advantage of the E.A.P., CO Burnett
testified that she received medical assistance for an extended period.
It became evident to the Local Union and management that COs Burnett and Basar
should not continue to work as COs at the WJ. CO Burnett was moved initially to work in the
administration building, which is separate from the main part of the jail. She was also assigned
temporarily to the Sarnia Jail. Since May of 2004, CO Burnett has been permanently assigned to
46
Probation and Parole in Windsor. She is now a classified employee. CO Basar has also been
assigned to work in the administration building, assisting the Staff Services Manager. He
indicated that he was placed there to avoid any further conflict. He testified that in his current
assignment he is losing overtime shifts and missing the correctional work he is trained for and
prefers.
The Caza Incident
As noted previously, this incident became a part of the CISU investigation because of a
reference CO Basar made in his OR about the Horan incident. In his OR, CO Basar referred to a
discussion that he had with CO Noseworthy on March 12, 2003, during which CO Noseworthy
asked him whose side he was on and at least implied that he was a rat. CO Basar wrote that he
told CO Noseworthy, among other things that, ?If I was a rat, several people would have
probably lost their jobs of [sic] what occurred several months ago with allegations of staff
beating intermittents and threatening them.? As one might expect, a reference like this would
attract the attention of the Employer. However, I have no doubt that CO Basar wrote the
sentence only to capture his conversation with CO Noseworthy, without realizing the
consequences that would follow.
The Caza incident took place not long after the 8:00 p.m. lock down on Sunday, July 28,
2002, when three intermittent inmates were removed from their cell in N Ward and searched for
contraband. During a lock down, inmates are secured in their cells. Intermittents are inmates
who serve their jail time on weekends. N Ward is located on the second floor, as is A&D. The
main witnesses for the Caza incident were COs Basar, Beltrano, Heggie, Noseworthy and
Tennant. COs Basar, Beltrano and Heggie worked the 3-11 p.m. shift. CO Tennant worked
47
from 3:00 p.m. to 7:00 a.m. in A&D and CO Noseworthy worked from 6:00 p.m. until 7:00 a.m.
OM Taylor was the IC from 7:00 p.m. to 7:00 a.m.
Even though they are searched upon entering and leaving the WJ, contraband was a
significant problem with intermittents. Intermittents are usually kept in N Ward. N Ward
consists of a hallway that leads to the grill door, which in turn leads to the N range and five cells.
If more than one intermittent is suspected of having contraband, they are taken to A&D where
they are strip searched and then they are returned to their cell after it has been searched. Caza
had a reputation for regularly bringing contraband into the WJ and he had received misconducts
in the past for possessing contraband.
CO Noseworthy and other officers noticed the smell of marijuana in N Ward and
observed inmates Caza, J. Munro and S. Sapardanis passing what appeared to be a cigarette
between them in cell #4. CO Noseworthy advised OM Taylor of their observations and a search
of cell #4 and a strip search of the three inmates was commenced. COs Beltrano and Heggie
entered N range to remove each inmate individually from the cell. The majority of the witnesses
could not recall which officer, if any, was on the grill door. CO Beltrano removed Caza first
from the cell and as they proceeded to leave the range, Caza was in front of CO Beltrano and CO
Heggie was behind CO Beltrano. As Caza was about to reach the grill door, he started to move
quickly and fell on mattresses that were on the floor in the hallway outside of N range.
CO Basar was a spare officer on the afternoon shift on July 28, 2002. He entered the area
of N Ward to conduct a security check just as Caza was removed from his cell by CO Beltrano.
His testimony about what he observed can be summarized as follows. He indicated that Caza
48
went down on the mattresses in a defensive stance, facing up, and said, ?Don?t hurt me?. He
testified that CO Beltrano came up to Caza, and while bending over at the waist, struck Caza two
or three times on the left side of his head in the temple area with a closed fist, as Caza was trying
to cover his face. CO Basar indicated that he was two or three feet away from the incident and
that COs Heggie and Noseworthy were present, but did not intervene. CO Basar testified that
CO Beltrano brought Caza to his feet by grabbing his coveralls in the left shoulder area. CO
Beltrano then dragged Caza down the hallway to A&D followed by Noseworthy. CO Basar
testified that he followed the escort to A&D and he observed CO Noseworthy kicking Caza on
his torso and legs as he was dragged down the hall. He also indicated that Noseworthy was still
kicking Caza and jumped on him once or twice when Caza was in A&D. He testified that CO
Tennant was seated in a chair at the A&D desk. CO Basar indicated that he heard someone yell
?Stop? as he entered A& D, but that he could not identify the male voice. He testified that the
direction to stop did cause CO Noseworthy to stop assaulting Caza. After Caza was searched,
CO Basar left A&D to complete his security round. CO Basar testified that the officers did not
give any directions to Caza during the incident and that Caza did not give them any justifiable
reason to use force. He indicated that he did not observe any injuries to Caza.
CO Beltrano testified that he participated in the search for contraband in N Ward during
the evening of July 28, 2002. He was working in the A&D area as an assist officer. He
indicated that as they were leaving N range with Caza on their way to A&D, Caza was in front of
him and CO Heggie was behind him. He stated that CO Noseworthy was outside of the range
watching them and that he could not specifically recall seeing CO Basar in the area. He
indicated that as they approached the grill door, Caza ran through the grill doorway and jumped
on the mattresses on the floor in the hallway. He testified that Caza grabbed the mattresses with
49
his arms while on his stomach and yelled, ?Don?t hurt me?. CO Beltrano testified that he was
surprised by Caza?s actions, that he hurried his pace to keep up with him and that he believed
that Caza was fairly intoxicated at the time. He acknowledges that he did not give Caza any
verbal directions when he was on the mattresses. More specifically, he agreed during cross-
examination that he did not give Caza a direction to stand up and that he should have given him
such a direction. He indicated that he tried to lift Caza up by grabbing his coveralls from the
back or shoulder area, but lost his balance because he did not expect as much resistance from
Caza?s weight. It was estimated that CO Beltrano weighs twice as much as Caza. CO Beltrano
indicated that when he lost his balance, he fell down on the upper part of Caza?s back. He stated
that he did not fall down hard and that there was no response from Caza. CO Beltrano testified
that he regained his balance and picked up Caza by grabbing his coveralls. He testified that once
Caza was on his feet, he let go of him and simply said, ?Let?s go?. He indicated that the officers
in the area did not assist him. He stated that as he took Caza to A&D, Caza went first, he
followed directly behind, CO Noseworthy was behind him and CO Tennant was in A&D. He
stated that he did the strip search of Caza in A&D and found contraband. Caza was then placed
in a cell in A&D and was returned to N Ward with the other two inmates after they were strip
searched.
CO Beltrano denied that he punched Caza in the head or anywhere else. He denied
kicking Caza at any time and he denied dragging Caza to A&D. He testified that he did not
observe anyone strike or kick Caza as Caza was moved from and back to N Ward. He indicated
that he did not initiate an A&I Report because he did not observe that Caza was injured and that
Caza did not complain about being injured. CO Beltrano specifically indicated that he did not
observe any injuries when he conducted the strip search on Caza.
50
COs Heggie and Beltrano are friends and they would see each other outside of the
workplace. CO Heggie confirmed that as Caza was about to leave N range on his way to A&D,
Caza was in the lead, CO Beltrano was within an arms length behind him and that he was behind
CO Beltrano. He indicated that as the grill door opened, Caza started to run or make a dash out
of the range and that CO Beltrano quickened his pace to keep up to Caza.He testified that Caza
did not get very far because almost immediately CO Beltrano got hold of the back of Caza?s
coveralls. He indicated that Caza then stopped running, did not resist and that Caza and CO
Beltrano walked down the hall and out of his sight. CO Heggie testified that he did not hear
Caza say anything and that he did not observe him leave his feet. CO Heggie remained in N
Ward to search the cell and did not go to A&D until later. He indicated that he did not see
anyone strike or kick Caza and that he would have able to observe such conduct if it had
occurred.
CO Noseworthy testified that he had an independent recollection of what occurred on
July 28, 2002, and then added that it was vague. He indicated that searching for contraband with
intermittents was so common that what occurred on this particular day did not stick out in his
mind. He testified that he did not observe Caza being beaten near the grill door. He indicated
that he would have been in a position to observe such an event if it had occurred and that he
would have assisted the officer. CO Noseworthy denied that Caza was dragged to A&D. He
also denied kicking Caza on the way to A&D. CO Noseworthy prepared the misconduct reports
for the three inmates.
51
As noted previously, S. Tennant was employed as a Police Constable when he testified.
He left his unclassified CO position at the WJ in September of 2002. Tennant confirmed that he
worked in A&D on July 28, 2002. He wrote an OR at 9:15 p.m. which refers to the search of the
three inmates. After smelling marijuana and speaking with CO Noseworthy, Tennant went to the
side of N Ward from where he could see into the back of the cell Caza was in, but not the grill
door. He testified that he observed COs Beltrano and Noseworthy in the N range and CO Heggie
on the grill door. He observed Caza being escorted from the range and he left his position to go
to the front of the unit because he was the only one with keys to A&D. He indicated that he did
not hear Caza say anything and that he did not see Caza on mattresses. He also indicated that he
did not see CO Basar in the area. He testified that he followed Caza and COs Beltrano and
Noseworthy down the hallway to the strip cubicle in A&D. He indicated that he did not see
anyone punch, drag or kick Caza. He testified that he did the strip search of Caza, with CO
Noseworthy assisting, while CO Beltrano returned to N Ward to escort another inmate. Tennant
testified that he was involved in another strip search of Caza near the end of the afternoon shift
and again when Caza was released the following morning. Tennant had a reputation for paying
close attention to anything unusual when performing a strip search. He indicated that he did not
observe any injuries to Caza when he performed the strip searches and that Caza did not
complain of any injuries. He stated in cross-examination that he would not specifically look for
injuries during a strip search, but that he would note them if they were obvious. Tennant was not
asked to provide a statement during the CISU investigation.
CO Basar did not file an OR on July 28, 2002 about the Caza incident. He explained that
he had essentially two reasons for not doing so.Firstly, he indicated that at the time he was a
52
friend of COs Beltrano and Noseworthy. He also indicated that he was concerned about the
consequences that could flow from implicating fellow officers in serious misconduct.
CO Beltrano also did not file an OR about the Caza incident. He testified that he did not
do so because at the time he did not consider what occurred with Caza as significant. He
indicated, as did other witnesses, that dealing with intermittents and contraband issues were a
common occurrence every weekend. He also stated that he felt there was no need for an OR
because Caza did not say that he was injured. CO Beltrano indicated that, in hindsight, he should
have written an OR since he now knows the repercussions associated with not writing one. He
stated that he told OM Taylor at the end of his shift what had occurred with Caza. He indicated
that he told him that Caza ran, that he had to remove him from a mattress and that he asked OM
Taylor, with CO Heggie present, whether he needed an OR from him. He indicated that OM
Taylor said, ?No. Don?t worry about it.? CO Heggie indicated that he had asked OM Taylor at
the end of the shift if any paper work was required and that OM Taylor said ?No?. CO Heggie
believed CO Beltrano did say something to OM Taylor, but he could not recall what it was. OM
Taylor testified that he could not recall speaking with CO Beltrano at the end Beltrano?s shift.
When CO Beltrano?s testimony about their discussion was put to OM Taylor in cross-
examination, he denied that CO Beltrano told him that Caza ran and that he had to remove him
from a mattress. OM Taylor indicated that he was unaware that anything like that took place.
He denied telling CO Beltrano that he did not have to write an OR. He stated that if he had been
told by CO Beltrano that Caza ran and that he fell on Caza, he would have asked CO Beltrano to
write an OR.
53
OM Taylor received a telephone call from Munro?s mother during the evening of July 28,
2002. She told him that someone called her to say that her son had been assaulted while at the
WJ. Assuming other inmates were responsible, OM Taylor told her that he would investigate the
matter. He requested that Munro be escorted to his office. COs Beltrano and Heggie escorted
Munro to the IC?s office near the end of their shift. OM Taylor told Munro that he had received
a call about him being assaulted and he asked him if there was a problem. Munro denied that
there was a problem. Recognizing that an inmate might not want to admit an assault, OM Taylor
examined Munro?s head and neck. He asked Munro to lift up his shirt and he examined his front
and back. He testified that he did not observe any injuries. Munro called his mother from the
IC?s office and confirmed to her that he had not been assaulted. OM Taylor directed the officers
to return Munro to his cell.
CO Basar testified that about forty-five minutes after the assault on Caza, he observed
CO Beltrano escorting inmate Munro upstairs to see OM Taylor. He testified that he was
approximately three feet away from them when CO Beltrano told Munro not to say anything to
OM Taylor or he would receive the same treatment as the other inmate. CO Basar indicated that
Munro told CO Beltrano that he understood and that he would not say anything. CO Beltrano
denied that he threatened Munro as described by CO Basar. CO Heggie testified that he did not
hear any threats directed at Munro during the escort to the IC?s office.
Caza was scheduled to return to the WJ on Friday, August 2, 2002, the weekend
following the incident described by CO Basar. He wanted to attend his sister?s wedding and he
and his family were concerned about losing ?good time? because of his misconducts. Caza?s
mother talked with SM Trudell by phone on August 1, 2002. SM Trudell stated that she first
54
asked him if her son was going to lose good time, which would affect his release date. He told
her that this was possible because of his three misconducts. Ms. Caza then told him that she
feared for her son because staff had assaulted him on numerous occasions while in custody. She
told him that Caza had been to a doctor who treated him for injuries to an ear, head and lips. She
also referred to bruising to his hands and arms. Ms. Caza said that she had photos of the injuries
and she would be talking to the police and her lawyer. SM Trudell asked her for the names of
the staff involved and he asked for a statement from Caza so that he could investigate the
complaint. Ms. Caza refused his request for information and stated that Caza was afraid of
reprisals if he named the officers involved in the assault. SM Trudell told her that it would be
difficult to look into the matter without details, but she continued to refuse to provide them.
Although he thought that Ms. Caza?s story was a ploy to keep Caza out of the WJ, SM
Trudell spoke about the matter to acting OM Adam since he would be on duty when Caza next
reported to the WJ and he was the person who would adjudicate Caza?s misconducts. He asked
OM Adam to ask Caza to provide a statement concerning the alleged assault, to look for any
injuries and to take photos if he observed any.
Acting OM Adam had been terminated by the Employer after the Caza incident and had
been reinstated with a suspension by the GSB. He was employed as a CO when he testified.
OM Adam interviewed Caza about his misconducts on Friday August 2, 2002, at approximately
7:30 p.m., and he wrote an OR. He told Caza that he was guilty of the misconducts but that he
would not take away his earned remission due to the high inmate count. Caza was happy about
this turn of events, given that he was about to be released. OM Adam testified that he then asked
Caza if he wanted to give a written statement about the allegations of assault on him by officers
55
while in custody. In his OR, OM Adam wrote that Caza simply indicated that he did not wish to
provide a written statement. In his testimony, CO Adam indicated that Caza went further and
denied that any assault had occurred. OM Adam wrote in his OR and testified that he took a
good look at Caza?s hands, face and ears while talking to him and that he did not observe any
sign of injuries. He indicated that there was no need to write an A&I Report or take any photos.
SM Trudell became aware on Monday, August 12, 2002, of the contents of OM Adam?s OR.
CO Adam agreed during cross-examination that it was possible to have an assault with no
observable physical injuries.
In addition to speaking to OM Adam, Trudell made inquiries of others about an alleged
assault on Caza. He spoke with OM Taylor and COs Heggie and Basar. OM Taylor told him
about his discussion with Munro?s mother, the way in which he handled that situation and that he
was unaware of an assault on Caza. COs Heggie and Basar told SM Trudell that nothing
happened with Caza. Although SM Trudell was given some indication that an officer or officers
assaulted Caza, no one came forward to provide him with any details about an assault,
particularly information about who was involved in assaulting Caza. SM Trudell determined that
he could not proceed any further.
CO Beltrano testified that he first heard about an alleged assault on Caza from CO Basar
shortly after the Caza incident. He indicated that CO Basar told him that Caza had complained
about being beaten up and that Caza?s mother had made a call to the WJ. He said that Basar told
him that SM Trudell gave him this information. CO Beltrano indicated that he next heard about
the Caza incident when he received a notice from the CISU that it was investigating the matter.
56
The CISU investigator interviewed CO Beltrano on June 3, 2003, from 9:50 a.m. until
2:50 p.m. As was the case with each grievor, CO Beltrano had been provided with a written
notice informing him that he had been identified as a subject employee. CO Beltrano testified
that he was under the impression that he was being investigated for failing to submit an OR.
Before the interview commenced, he was given a copy of the investigation protocol and he had
an opportunity to review it. CO Beltrano, as did most employees who were interviewed, chose
CO Mahoney as his representative. At the conclusion of the interview, CO Beltrano had the
opportunity to review his statement and to make corrections. He initialed each page of the
statement. CO Beltrano testified that he had a good recollection of the major features of the
incident when he gave his CISU statement and when he was testifying.
CO Beltrano testified that there were two comments by the investigators that are not
reflected in his CISU statement. He indicated that at the outset of the interview the investigators
told him that the police were actively investigating the Caza incident and that charges are
pending. This comment is not in CO Beltrano?s written statement. Although he did not ask any
questions about this information, he testified that he was worried and scared and that he was not
sure that he wanted to say anything in this forum. When he was asked to share what he knew
about the Caza incident, he described the movement of Caza and the other two inmates to A&D,
without referring to Caza falling on the mattresses or how he fell on Caza while trying to get him
on his feet. CO Beltrano testified that he asked for a break quite early on in the interview. A
note at this point in the Report indicates that the investigator encouraged CO Beltrano to take a
break and to reconsider the truthfulness of his statement. Inspector Micucci agreed during his
cross-examination that Inspector Farkas told CO Beltrano, in effect, that he did not want to see
him ?go down that road? and that his integrity was suspect, and that these comments were not
57
recorded. CO Beltrano testified that he spoke with CO Mahoney during the break and was
advised by him that he had to give a statement to the investigators whether or not there was an
ongoing police investigation. CO Beltrano testified that with this advice he decided to tell the
investigators what happened. When the interview resumed, CO Beltrano provided a version of
the Caza incident which included Caza running from N range, falling on the mattresses and CO
Beltrano falling on Caza as he tried to get him up.
CO Beltrano testified that Inspector Farkas asked him if he would agree to submit to a
polygraph test. CO Beltrano responded immediately by saying that he would agree to such a
test. This exchange is also not in his written CISU statement. CO Mahoney corroborated CO
Beltrano?s testimony about the two features of the interview that are absent from CO Beltrano?s
written CISU statement.
CO Beltrano was asked during cross-examination about certain inconsistencies between
what he told the investigators and what he said during his testimony. For example, he told the
investigators that he could not recall Caza?s body position on the mattresses, but testified that
Caza was on his stomach. He told the investigators that Caza was screaming when on the
mattresses, but in his testimony indicated that he was not screaming. CO Beltrano explained
these and other inconsistencies by saying that he could now recall more details of the incident
and that he should have reviewed his written statement more carefully at the conclusion of the
CISU interview.
Some Issues Relevant To Both Incidents
58
Some areas covered in the evidence were relevant to both the Horan and Caza incidents
and many witnesses were asked questions relating to them. These areas concerned the use of
force, the code of silence in Corrections, the preparation of ORs and the relationship between
COs Burnett and Basar and other COs at the WJ. I will briefly touch on each of these subjects.
The duties of a CO include the care, custody and control of inmates and because of their
role, COs are in a position of power and trust. In performing their duties, COs are confronted
with many challenges, including health and safety risks. Inmates can often be physically and
verbally abusive with each other and they can be verbally and physically abusive with COs. COs
are trained to deal with the realities of an institutional setting, including how to deal with
uncooperative, verbally abusive and unpredictable inmates. The exercise of self-control is a
necessary quality for a CO who will be confronted undoubtedly with provocative situations.
As a peace officer, a CO is authorized to use force in carrying out his or her
responsibilities. Many witnesses testified about the classroom and hands on training they
received on the use of force. Mr. Ireland described in detail the use of force training that officers
receive while at Bell Cairn, the Ministry?s training facility, as well as the ongoing training that is
provided to COs. COs who are trained to perform community escort and those who are on the
Institutional Crisis Intervention Team (?ICIT?) or Cell Extraction Team (?CET?) receive
additional and specialized training on the use of force. The use of force is addressed in section 7
of Regulation 778 under the Ministry of Correctional Services Act. Section 7 provides as
follows:
7 (1) No employee shall use force against an inmate unless force is required in order to,
(a)enforce discipline and maintain order within the institution;
(b)defend the employee or another employee or inmate from assault;
(c)control a rebellious or disturbed inmate; or
59
(d)conduct a search.
(2)When an employee uses force against an inmate, the amount of force used shall be
reasonable and not excessive having regard to the nature of the threat posed by the
inmate and all the other circumstances of the case.
(3)Where an employee uses force against an inmate, the employee shall file a written
report with the Superintendent indicating the nature of the threat posed by the
inmate and all other circumstances of the case.
COs are provided instruction on the ?use of force continuum?. Based on this model, the
nature of the conduct of an inmate will dictate a CO?s response in any particular situation. As an
inmate?s conduct moves along the continuum, from compliant, to passive and verbal resistance,
to active resistance to serious bodily harm, a CO?s response should be only proportionate to the
conduct of the inmate and the risk created by that conduct. Along the continuum for the CO is
officer presence, then verbal requests and then directions, followed if necessary by soft and then
hard empty hand techniques, followed by restraints and weapons and chemical agents, if
necessary. As section 7 of the above regulation and the WJ Standing Orders stipulate, COs can
use force only as a last resort and they are obliged to use the least intrusive amount of force
having regard to an assessment of what is necessary in a given situation to maintain custody and
control of an inmate. The evidence indicates that the grievors and those COs who testified in this
proceeding are well aware of their responsibilities regarding the use of force.
As the summary of the evidence discloses and as a number of decisions have referenced,
there is a code of silence in correctional institutions which places considerable pressure on a CO
to refrain from disclosing the misconduct of fellow officers to management. In a setting where
COs rely on each other to a considerable degree for safety, it is perhaps not entirely surprising
that the code of silence is a part of the reality of a correctional facility. Another aspect of this
60
reality is that a CO who breaches this unwritten rule is likely to face serious adverse
consequences. The code of silence operates to protect COs who engage in misconduct and to
some extent it condones and encourages misconduct. The code of silence also operates to turn
those COs who elect not to remain silent into victims. They will likely be labeled a ?rat? and
generally ostracized. They will often be harassed in various ways, inside and outside of their
institution. They may find that the only way to address the stress associated with being labeled a
?rat? is to change institutions or give up correctional duties.
The evidence in this case indicates that the code of silence operates at the WJ. COs at the
WJ are at least reluctant to ?rat? on fellow officers out of fear of the consequences. I do not
intend to revisit each aspect of the evidence that touches on this issue. The summary of the
evidence refers to COs Burnett and Basar?s concerns about the consequences of breaching the
code of silence and how this affected their decisions about whether or not to write an OR on the
Horan incident. CO Basar did not write an OR on the Caza incident because in part he had a
concern about what could happen to him if he violated the code of silence. There were also the
consequences they experienced after they broke their silence. What is most telling is the advice
that the Mr. D. Bragaglia gave to CO Burnett after the Horan incident. He told her that she
should not take shifts in order to let the matter die down. He also advised her not to put in an OR
about the Horan incident. It was clear from CO Burnett?s testimony that Mr. Bragaglia gave her
this advice because he was aware of the potential consequences for her if she accused officers of
using unjustified and excessive force on an inmate. Mr. Wasylyk indicated that Mr. Bragaglia
made representations to him sometime later about removing CO Burnett from the WJ out of
concern for her health and safety. M. Bragaglia did not testify. Nonetheless, it is reasonable to
conclude that his advice to CO Burnett and his representations to Mr. Wasylyk were based on a
61
recognition that the code of silence exists at the WJ and an understanding of what consequences
might occur if the code of silence was breached. There was also undoubtedly a natural desire on
his part as a Union official to avoid disputes among bargaining unit members and to protect the
interests of every CO, including COs Burnett and Basar. One of the factors to consider when
assessing the evidence in a case like this is the impact of the code of silence on the participants
and witnesses. An employee who resorts to the code of silence when preparing an OR or when
giving a CISU statement will likely continue to follow the code when testifying.
It is apparent that there is also reluctance on the part of an inmate to ?rat? on other
inmates or on COs. Ratting on another inmate may leave one open to verbal and physical abuse
from other inmates. There is also a concern among inmates that ratting on a CO might also lead
to undesirable consequences, given the power a CO has over an inmate. The fact that an inmate
does not report or denies an assault by a CO does not necessarily mean that no assault occurred.
Superintendent Wasylyk testified that reliance by inmates on the code of silence is part of the
prison subculture.
COs receive training on when to write ORs and the proper way to write them. COs are
required to document unusual events that occur within the institution and to submit an OR on the
day of the incident. An OR should provide a detailed description of the unusual event, including
the names of the participants and any witnesses. A written record of an unusual event may be
useful for determining what occurred if it is necessary to revisit the incident. An OR can serve to
protect the interests of a CO if he or she is accused of violating the rules. As noted previously,
section 7(3) of Regulation 778 requires that an OR indicating the nature of the threat and all the
circumstances is required when a CO uses force against an inmate.
62
COs at the WJ are aware of their obligations with respect to writing ORs. However, COs
and managers at the WJ developed a practice prior to the Horan and Caza incidents which fell
short of meeting those obligations. COs would often write an OR only if they were the main
participants in an event, and not write one if they thought that they were only peripherally
involved or if they only witnessed an event. In writing reports, some COs often would not refer
to the names of officers who were involved. This was often the case because of a concern about
breaking the code of silence. CO Orton testified that an instructor at Bell Cairn told him at the
end of a class that including names in ORs would not endear him to fellow officers. In writing
their ORs, some COs often provided few details of the event. Efforts to improve OR writing met
with some success when Deputy Patrick was at the WJ. When she left the WJ with her infamous
red pen in March of 2000, OR writing reverted to the practice described above. The Report
referred to the problems with report writing at the WJ. During the course of this proceeding, the
Employer referred to number of instances when an OR was not written, was untimely or was not
properly written, contrary to policy. I note that there were no requests of COs by management to
rewrite ORs that were alleged to be deficient. Any relevant OR that has been filed in this
proceeding or the failure of someone to write an OR will have to be assessed in light of the
practice that was prevalent at the time.
A number of witnesses testified about the nature of their relationship with CO Burnett,
and to a lesser extent, the nature of their relationship with CO Basar. These witnesses referred to
an event or events in which they interacted with either COs Burnett or Basar. The purpose of
this evidence was to cast an unfavourable light on the credibility and to some extent on the
character of COs Burnett and Basar. I find it unnecessary to review this evidence. Much of the
63
evidence going to these collateral issues was hearsay. In many instances, I found that CO
Burnett?s perspective on an event to be realistic and more credible. However, I did not find the
evidence of how COs Burnett and Basar interacted with others in relation to events that were
unrelated to the Horan and Caza incidents to be helpful in resolving the key issues in dispute.
The evidence did establish that there were at least two groupings of employees at the WJ.
One grouping included CO Burnett and certain other COs. It appears that CO Burnett was the
dominant person in this grouping. CO Basar became associated with this group sometime during
the Fall of 2002, after the Caza incident. The other grouping of employees included COs
Noseworthy and Beltrano. There were obvious tensions at the WJ because the members of each
group did not get along with the members of the other group. In December of 2002, some of the
members of both groups participated in mediation in an effort to work out their differences. This
effort appears to have done little to lessen the tensions between the two groups of employees.
There was some indication in the evidence that some employees developed an
unfavourable opinion of CO Burnett because of a perception that she was reluctant to use force.
It appears that CO Noseworthy was one of these employees. CO Burnett testified that she had a
discussion with CO Noseworthy in February of 2003, prior to the Horan incident, which touched
on this subject. CO Burnett testified that their discussion began with CO Noseworthy asking her
why she wrote an OR on CO Baker. After she explained why, CO Noseworthy told her that she
should not have written that OR. As they continued their discussion outside, CO Burnett told
him that she did not know why CO Baker did not like her. She indicated that CO Noseworthy
told her that you would get respect from that group of employees if you used force. She
indicated that he told her that he used to get pushed around by them, but that he gained their
64
respect after he used force. CO Burnett testified that CO Noseworthy told her that she would be
okay if she threw one punch. CO Burnett indicated that she did not respond to what he said but
thought that she did not need their respect if that is what she had to do to get it. She noted that
their discussion ended on a positive note because at least CO Noseworthy was trying to be
helpful. CO Noseworthy testified that he did discuss the use of force with CO Burnett. He
indicated that he told her that she was reluctant to use force when it was required and that others
would respect her more if she did engage when required, rather than hide from it. CO
Noseworthy denied telling her that she would be okay if she threw one punch.
As noted previously, counsel required four days to complete their submissions. They
reviewed the extensive oral and documentary evidence in detail and they referred to a number of
decisions to support their submissions. A summary of the submissions is set out below.
Counsel for the Union referred to the conflicts in the testimony of CO Burnett and the
testimony of CO Basar, as well as the conflicts between their testimony and the testimony of the
grievors and other witnesses. Counsel submitted that I should resolve these conflicts by
favouring the version of the evidence provided by the grievors and conclude that the Employer
failed to prove the allegations against the grievors with the quality of evidence that is clear,
cogent and reliable. Counsel also argued that I should draw an adverse inference against the
position advanced by the Employer because of its failure to call inmates Horan and Caza as
witnesses. Counsel submitted that in the particular circumstances of this case that I should infer
that the testimony of inmates Horan and Caza would have been contrary the testimony of COs
Burnett and Basar or would not have supported their version of the events. Counsel also
submitted that the evidence establishes that inmates Horan and Caza did not sustain any injuries
65
on the day of the alleged assaults, thereby demonstrating that the testimony of COs Burnett and
Basar is not credible or at least unreliable. In counsel?s submission, it is impossible to explain
the absence of injuries to the two inmates having regard to COs Burnett?s and Basar?s
description of the Horan incident and CO Basar?s description of the Caza incident. Counsel also
argued that the Employer?s delay in disciplining COs Beltrano and Noseworthy should void their
discharge arising from their involvement in the Caza incident. Counsel submitted that I should
find on the evidence before me that the Employer did not prove on a clear and cogent basis that
COs Beltrano, Orton and Noseworthy used unjustified and excessive force on an inmate and that
I should direct the Employer to reinstate them and compensate them fully for their losses.
Counsel also submitted that no more than a reprimand would be warranted if I concluded that the
other allegations against the grievors have been proved.
Counsel for the Union referred me to Brown & Beatty, Canadian Labour Arbitration,
nd
paragraphs 3:5120, 7:2500 and 7:4414, The Law of Evidence in Canada, 2 Edition, paragraph
6.321and an excerpt from Principles of Employee Relations in the OPS. Counsel also relied on
the following decisions: Re A.B.F. Freight Systems (B.C.) Ltd. and General Truck Drivers &
rd
Helpers? Union, Local 31 (1987), 28 L.A.C. (3) 246 (McPhillips); Re Canada Post Corp. and
th
C.U.P.W. (1992), 28 L.A.C. (4) 137 (Shime); Re Canet Freight Cartage Ltd. and Teamsters
th
Union, Loc. 419 (1993), 35 L.A.C. (4) 314 (Bendal); Re Tenant Hotline and Peters and Gittens
(1983), 10 L.A.C. (3rd) 130 (MacDowell) and Re OPSEU (Jones) and Ministry of Correctional
Services (1992), GSB No. 1900/90 (Verity).
Counsel for the Employer submitted that the conflicts in the evidence were considerable,
but argued that they were most evident in the testimony of the grievors. Counsel argued that
66
there is no reason for COs Burnett and Basar to come forward and lie about what they observed
and that I should prefer their testimony to that of the grievors and some of the other witnesses.
Counsel submitted that no adverse inference should be drawn for not calling the two inmates to
testify, given the failure of the grievors to give credible testimony and in light of credible
testimony from COs Burnett and Basar. Counsel also submitted that the evidence about injuries
to the inmates does not make the testimony of COs Burnett and Basar unreliable. Counsel also
argued that there is no basis for overturning CO Beltrano?s discharge because of the time it took
to discipline him. Counsel argued that the grievances should be dismissed given the unjustified
and excessive use of force by the grievors on an inmate and their failure to admit to this conduct.
In counsel?s submission, the conduct of the grievors is extremely serious for a peace officer,
constitutes a breach of trust and has created irreparable harm to the employment relationship.
Counsel referred to Section 7(4) of the Crown Employees Collective Bargaining Act, S.O 1993,
c.38, a provision which affects the GSB?s power to substitute a penalty where excessive force
has been used.
Counsel for the Employer filed two casebooks which contained the following decisions:
Re Ontario Liquor Board Employees Union (Massa) and Liquor Control Board of Ontario
(2000), GSB No. 2033/97 et al. (Abramsky); Re OPSEU (Adam) and Ministry of Community
Safety and Correctional Services (2005), GSB No. 2003-0892 et al. (Herlich); Re AMAPCEO
(Globerman) and Ministry of Health and Long-Term Care (2006), GSB No. 2001-0901
(Petryshen); Re OPSEU (Wickett et al.) and Ministry of Natural Resources (2005), GSB No.
2001-0542 (Petryshen); Re Ontario Liquor Board Employees Union(Pedneault) and Liquor
Control Board of Ontario (2000), GSB No. 1568/98 (Briggs); Re PEGO (Shannon) and Ministry
of the Environment (2005), GSB No. 2002-2915 (Herlich); Glenrose Rehabilitation Hospital v.
67
Canadian Health Care Guild, [2000] A.G.A.A. No. 54 (Fisher); Alberta Union of Provincial
Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727; A.U.P.E. v. Caritas Health
th
Group (2006), 154 L.A.C. (4) 140 (Alt. C.Q.B.); Re Alberta (Department of Justice) and
th
A.U.P.E. (2006), 154 L.A.C. (4) 183 ( Sims); Community Living South Muskoka v. OPSEU,
[2000] O.L.A.A. No. 820 (Mikus); Toronto (Metropolitan) v. C.U.P.E., Local 79, [2001]
O.L.A.A. 559 (Simmons); E.B. Eddy Forest Products Ltd. v. CEP, Loc. 31-X, [1998] O.L.A.A.
th
No. 612 (Tacon); Re DeHavilland Inc. et al. and CAW, Local 112 (1999), 83 L.A.C. (4) 157
(Rayner);Re Management and Training Corporation of Canada andOPSEU, unreported, dated
March 20, 2006 (Knopf); Re Doughty Concrete Products Ltd. and C.E.P., Loc. 294(B) (1996),
th
59 L.A.C. (4) 289 (Hunter); Re Breweries? Employers Industrial Relations Assn. and Western
th
Union of Brewery, Beverage, Winery & Distillery Workers, Local 287 (1992), 29 L.A.C. (4)
409 (Moreau); Manitoba (Province) and Manitoba Government Employees? Union, [1999]
M.G.A.D. No. 50 (Teskey); Re Canadian General Tower Ltd. and U.S.W.A., Local 862 (2003),
thrd
118 L.A.C. (4) 193 (MacDowell); Re British Columbia and BCGEU (1987), 27 L.A.C. (3)
311 (Hope); R v. Sammy, [2004] O.J. No. 1850 (ONCJ); Re Alberta and A.U.P.E. (2002), 112
th
L.A.C. (4) 289 (Elliott); New Brunswick v. Robinson, [1999] N.B.J. No. 1 (NBCQB); Re
OPSEU (Horan) and Ministry of Public Safety and Security (2002), GSB No. 0670/01 (Herlich);
th
Re Orica Canada Inc. and U.S W.A, Local 2020 Unit 14 (2005) L.A.C. (4) 61 (Whitehead); Re
rd
Regional Municipality of Ottawa-Carleton and C.U.P.E., Local 503 (1985), 18 (3) 292
th
(Burkett);Re Toronto (Metropolitan) and C.U.P.E., Loc. 79 (1992), 31 L.A.C. (4) 79
(Springate);Re Texport Division of Oxord Warehousing Ltd. and Teamsters Union, Local 938
nd
(1980), 25 L.A.C. (2) 111 (Burkett); Re Edmonton (City) and A.T.U., Loc. 569 (2006), L.A.C.
th
(4) 257 (Sims) and Re OPSEU (Collin) and Ministry of Community safety and Correctional
Services (2007), GSB No. 2001-1578 (Harris).
68
I agree with the Union?s submission that the appropriate standard of proof when
addressing these types of issues is higher than the simple civil burden of ?on the preponderance
of the evidence?. Although the grievors were not charged criminally, the Employer has alleged
that the grievors physically assaulted an inmate without justification. In cases involving serious
allegations of this sort, most arbitrators have utilized a test that is higher on the balance of
probabilities scale, although short of the criminal standard of beyond a reasonable doubt. I find
therefore that the Employer in this case is required to prove its allegations with clear and cogent
evidence. Counsel for the Employer did not suggest otherwise.
The general issue for determination in this matter is whether the Employer had just cause
to dismiss COs Beltrano, Noseworthy and Orton. Given the allegations against the grievors and
the way the parties framed the issues, the central questions are whether COs Noseworthy and
Orton used unjustified and excessive force against Horan and whether COs Beltrano and
Noseworthy used unjustified and excessive force against Caza.
In my view, it is possible to refine the issues even further by focusing on whether COs
Noseworthy and Orton punched Horan, and on whether CO Beltrano punched Caza. It is
significant for purposes of analysis that the grievors deny punching an inmate. CO Beltrano
denies that he punched Caza on July 28, 2002 at the WJ. Similarly, COs Noseworthy and Orton
deny that they punched Horan on March 11, 2003 at the WJ. This is not a case in which the
grievors admit to punching an inmate, but then claim that such conduct was justifiable in the
circumstances. It follows logically then that the grievors recognize that there would have been
no justification for punching inmates given the circumstances. I suspect that punching an inmate
simply to gain control likely would be considered unjustifiable in almost any circumstances.
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Although there is an issue of whether any force on the inmates was justifiable in this case, a
determination of whether COs Noseworthy and Orton punched Horan and of whether CO
Beltrano punched Caza is the critical feature in this case.
The thrust of the Union?s submissions was to demonstrate that COs Burnett and Basar
were not telling the truth in making their allegations or that their versions of the incidents were
not reliable. I noted at the outset of this decision that the result in this case in large part hinges
on whether I accept as true the version of the incidents as described by COs Burnett and Basar.
While focusing on the Union?s submissions, I have carefully reviewed the testimony of CO
Burnett and the testimony of CO Basar in light of all of the oral and documentary evidence. It is
my conclusion that each of them testified truthfully and gave reliable testimony about the
material aspects of the two incidents. Where there are significant conflicts in the evidence, I
preferred their version of the material aspects of the incidents to the versions provided by the
grievors and other witnesses. Although CO Basar was not a particularly sophisticated witness, as
counsel for the Employer noted, his testimony nonetheless had a truthful quality. It is also my
conclusion that the testimony of COs Beltrano and Noseworthy in relation to the key aspects of
the Caza incident and COs Noseworthy and Orton in relation to the key aspects of the Horan
incident was not credible. Before turning to each incident, I will make some general
observations about some of the matters covered by the Union?s submissions.
It is not surprising that there were many conflicts in the evidence. The evidence in this
proceeding was voluminous and covered events that occurred two or more years before any
witness testified about them. The key aspects of the Horan and Caza incidents took place very
quickly and were of short duration. At the same time, they took place in an emotionally charged
70
context, as one would expect with any physical altercation. Contrary to the Union?s submission,
the testimony of COs Burnett and Basar was fairly consistent on the important elements of the
Horan incident and the relatively minor conflicts were not particularly significant. Given the
nature of that incident, it would be unusual if COs Burnett?s and Basar?s testimony would be
completely consistent and precise on such details as where Horan was positioned on the first
floor when the physical altercation started, how many punches were thrown by each grievor,
when they were thrown and where they landed.
The Union submitted that CO Basar was not telling the truth when he indicated that he
did not see the takedown. The Union suggested that CO Basar did observe that no one punched
Horan when he was on his feet and that his testimony was tailored so as not to contradict CO
Burnett?s testimony. CO Basar has consistently said that he did not see what precipitated the
takedown and there is no reason to disbelieve his evidence on this point. All the witnesses
indicated that the takedown happened very quickly and his turning away as he was moving into
position by the laundry door likely caused him to miss the takedown. CO Basar?s evidence that
he did not see the initial punches that CO Burnett said she saw, actually serves to enhance his
credibility. If CO Basar and Burnett were offering a fabrication of COs Noseworthy and Orton?s
conduct, one would expect that CO Basar would have had little difficulty in corroborating this
feature of CO Burnett?s testimony.
The Union referred to the conflicts in the evidence regarding such matters as where
individuals were positioned on the stairs during the return escort, where COs Orton and
Noseworthy were positioned while they were attempting to secure Horan after the takedown and
how Caza was positioned on the mattresses in the hallway on N Ward. Again, given the nature
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of the incidents, it is not surprising that there would be conflicts about such matters. It is my
view that the conflicts in the evidence of this sort did not serve to discredit any of the witnesses,
including the grievors. CO Basar is the only witness to testify that CO Fredericks was in front of
Horan as the escort was moving down the first floor stairway. Given the evidence on this point,
it is likely that CO Basar is incorrect about the position of CO Fredericks. However, this
conclusion does not affect my view about CO Basar?s testimony on the central features of the
incident.
I found that the testimony of COs Burnett and Basar was also internally consistent. Their
testimony was essentially consistent on key matters with what they wrote in their ORs and what
they told the CISU investigator. In contrast, there were some significant conflicts between the
testimony of COs Noseworthy and CO Orton, and between CO Beltrano and other witnesses to
the Caza event. Their testimony was not as consistent with their OR and their statement to the
CISU investigator.
The Union argued that COs Burnett and Basar were not truthful when they testified that
they did not discuss writing an OR after March 11, 2003. It submits that it is unbelievable that
they would agree not to write an OR on March 11, 2003, and then each write an OR soon after
without discussing the matter with each other. There certainly is no evidence to contradict COs
Burnett and Basar?s assertions that they independently decided to write an OR on the Horan
incident. CO Burnett did not report to work at the WJ for some time after March 12, 2003, and
she indicates that she did discuss writing an OR with the Union advisor and the Local Union
President. She wrote her OR at home on March 13, 2003 and did not submit it until the
following week. CO Basar wrote his OR while at work at the WJ on March 13, 2003, and
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presumably, he submitted it soon after. In my view, they would have no good reason not to
disclose that they had talked to each other about writing an OR after March 11, 2003, if they had
done so. I therefore accept their testimony on this point as truthful. There is certainly no
indication from anything in the evidence that COs Burnett and Basar discussed the Horan
incident with a view to concocting a version of the event which was not true.
The Horan and the Caza incidents were fairly unusual and dramatic events. The
punching of an inmate repeatedly is not the kind of thing that a CO would likely be mistaken
about or forget. The same can be said for kicking an inmate, which is what CO Basar said CO
Noseworthy did to Caza. For this reason, it is not surprising that each grievor was asked in
examination-in-chief why CO Burnett and CO Basar were lying about what occurred during the
incidents. This question reflects the view of this case that I expressed previously, which is that
one side or the other in this dispute is not telling the truth. I find the answers the grievors gave to
the question were based on speculation and without any credible support. It is very difficult to
accept that CO Burnett and Basar would lie about fellow COs to improve their chance of
securing a classified position, particularly given how such issues are determined under the
Collective Agreement. I also did not find that the evidence about the existence of two camps of
employees at the WJ provides an explanation for why COs Burnett and Basar would lie about the
actions of the grievors.
In my view, COs Burnett and Basar?s willingness to breach the code of silence serves to
bolster their credibility. As Superintendent Wasylyk stated, based on his lengthy experience in
the Ministry, it is an extremely rare occurrence for a CO to report on the misconduct of another
CO. This is because COs are well aware of the repercussions for breaching the code of silence.
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COs Basar and Burnett had no illusions about the consequences that likely would face them if
they reported on the grievors.Their concerns about breaching the code of silence led them to
decide initially not to write an OR about the Horan incident and they eventually wrote one only
with considerable reluctance. Part of the reason for CO Basar not reporting on COs Beltrano and
Noseworthy in 2002 was a fear of reprisals. It is difficult to understand why any CO would
choose to breach the code of silence and suffer repercussions for doing so by fabricating a story
about a fellow CO. It simply does not make any sense and is highly improbable that a CO would
do this. Their decision to breach the code of silence with respect to the incidents strongly
suggests that their version is credible. This is in contrast to the self serving aspects of the
grievors? testimony.
The Union requests that I draw an adverse inference against the Employer for not calling
the inmates to testify. Counsel for the Union emphasized that Horan and Caza would be in the
best position to describe whether they were assaulted and to what extent they were assaulted, and
he argued that their absence as witnesses from this proceeding in light of all the circumstances is
telling. Counsel referred me to the following paragraph from the Law of Evidence in Canada,
second edition:
6.321In civil cases, an unfavourable inference can be drawn when, in the absence of an
explanation, a party litigant does not testify, or fails to provide affidavit evidence on an
application, or fails to call a witness who would have knowledge of the facts and would
be assumed to be willing to assist that party. In the same vein, an adverse inference may
be drawn against a party who does not call a material witness over whom he or she has
exclusive control and does not explain it away. Such failure amounts to an implied
admission that the evidence of the absent witness would be contrary to the party?s case or
at least would not support it.
This passage indicates that an adjudicator has discretion in appropriate circumstances to
draw an adverse inference when a party fails to call a particular witness.I agree with counsel for
74
the Union that the decision about whether to draw an adverse inference must be based on the
particular facts of the case. Having regard to above excerpt, can it be assumed that a former or
current inmate would be willing to assist the Employer? It appears to me that it may not be
appropriate to make such an assumption in this case. As noted previously, inmates, and I would
expect former inmates that might pay a return visit to an institution, are not immune to the code
of silence. An inmate who had been assaulted by a CO might be reluctant to testify truthfully
about the event out of a concern that the CO or other COs may have the opportunity to get even
at some later date. Even if the assumption can be made, there are obvious difficulties for this
Employer in requesting an arbitrator to take the word of an inmate, rather than a CO.
More importantly, I have found in this case that the grievors are not credible and that I
prefer the testimony of COs Burnett and Basar where there is a conflict in the evidence on
important matters. As counsel for the Employer submitted, this is not a case where the evidence
is somewhat evenly balanced so that the drawing of an adverse inference would be helpful in
determining the facts. Drawing an adverse inference here, even if the conditions for doing so
were present, will not alter my view of the grievors? testimony. Accordingly, this is not a
situation where it is appropriate to exercise my discretion to draw an adverse interest against the
Employer for not calling inmates Horan and Caza as witnesses.
The Union placed considerable emphasis on the evidence about injuries or lack thereof to
Horan and Caza. It was argued that the evidence relating to injuries illustrates that the
descriptions of the grievors? conduct by COs Burnett and Basar cannot be reliable or accurate.
In making my assessment of the credibility and reliability of COs Burnett and Basar?s testimony,
I paid particular attention to the evidence about injuries to Horan and Caza. It is obvious from
75
my conclusion that that evidence did not lead me to doubt their version of the two incidents. In
other words, the evidence about the injuries to Horan and Caza did not cause me to find that the
grievors did not assault the inmates. I will refer to this issue in more detail later when I more
fully address my factual conclusions.
As counsel for the Union submitted, there are circumstances where discipline will be
found to be void because of an employer?s delay in imposing discipline. Counsel noted that COs
Beltrano and Noseworthy were not disciplined for the Caza incident of July 28, 2002, until
January of 2004. The Union argued that the Employer did not investigate the Caza incident
properly and that it should have responded to that incident well before CO Basar referred to the
matter in his OR in March of 2003. It also argued that the Employer took too long to discipline
these grievors even after CO Basar came forward with the information about the Caza matter.
I disagree with the submission that the Employer failed to investigate the Caza incident
properly. SM Trudell made reasonable efforts to discover if there was any basis for the
allegation that Caza was assaulted by officers. He asked Caza?s mother for details about her
complaint and he asked for Caza to make a statement. Even though he received no cooperation
from Caza or his mother, he pursed the matter by asking OM Adam to observe Caza when he
returned to the WJ. CO Adam advised him by means of an OR that he did not observe any
injuries to Caza and that Caza did not want to provide a written statement. OM Trudell
questioned COs Basar and Heggie about the matter and each of them told him that Caza had not
been assaulted. Although he did not question all the employees, as the Union pointed out, it is
unrealistic to think that he would have received any different information if he had questioned
COs Beltrano and Noseworthy or anyone else. SM Trudell was left only with an unsubstantiated
76
complaint with no indication of which officer was alleged to have assaulted Caza. It is not
surprising in these circumstances that he concluded that he had no basis for proceeding any
further with the matter.
When CO Basar made reference to an earlier incident of inappropriate conduct by
officers in his OR of March 2003, the Employer included the matter as a part of the CISU
investigation. It was reasonable for it to do so, particularly since CO Noseworthy was common
to both the Horan and Caza incidents. CO Basar gave a statement about the Caza matter to the
investigator on April 13, 2003. Given the nature of the incidents and the investigation, it is not
unreasonable that the investigation process and the disciplinary process took as long as it did.
Once it became aware of allegations against COs Beltrano and Noseworthy, the time it took to
deal with the matter was the same as for the Horan incident involving COs Orton, Noseworthy
and Fredericks, where no delay issue has been raised. The Union?s position on the length of time
it took to discipline COs Beltrano and Noseworthy for the Caza incident must be assessed in
light of the particular facts of the case. In my view, the circumstances here do not warrant the
conclusion that the discharges of COs Beltrano and Noseworthy for their role in the Caza
incident are void for delay.
I turn now to a closer examination of what occurred in each incident and why I had
difficulty with the credibility of the grievors and some of the other witnesses. As in any
examination of a use of force incident, the primary focus is on why force was required and the
amount and nature of the force used, given the risks associated with the situation. Any
description of the event by the participants and any observers, whether in their testimony, in an
OR or in a CISU statement, will be particularly relevant.
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The Horan Incident
To briefly reiterate, CO Burnett testified that CO Noseworthy pushed Horan a number of
times during the return escort and that COs Orton and Noseworthy initiated force without
justification by each punching Horan near the laundry door on the first floor. She also indicated
that they each punched Horan when he was on the floor after the takedown without cause. CO
Basar testified that he observed COs Orton and Noseworthy manhandling Horan on the first floor
stairs and that he observed each of them punching Horan when he was on the floor after the
takedown.
Although not particularly significant by itself, the evidence about the comments to Horan
about whether he was a PC is indicative of the general difficulty I have with COs Noseworthy
and Orton?s testimony. CO Burnett claims that CO Noseworthy asked Horan a few times in a
sufficiently loud voice if he was a PC inmate. CO Noseworthy denied that he or CO Orton did
any such thing. CO Orton testified that he could not recall making such a comment, yet he
admitted that he did make such a comment in his CISU statement and that it was wrong to do so.
He also admitted to Superintendent Wasylyk that he had asked Horan whether he was PC. CO
Noseworthy?s testimony on this point is not believable, including his assertion that CO Orton
made no such comment, given CO Burnett?s testimony and the fact that CO Orton admitted to
making such a remark. CO Orton?s evidence that he could not recall making such a comment is
also not credible given that he clearly was able to recall making such a remark to Horan when he
gave his CISU statement and at the allegation meeting with Superintendent Wasylyk. By
indicating that he could not recall asking Horan if he was PC, it appears that CO Orton was
attempting to minimize any conflict with what CO Noseworthy would say about the matter.
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CO Orton testified that he had no previous dealings with Horan before Horan?s suicide
attempt. He also indicated that certain officers told him that Horan was unpredictable when he
was preparing his OR about Horan?s suicide attempt. However, he could not recall who these
officers were or the details of what they said.CO Orton did not refer to Horan?s unpredictability
and how he learned about it in either his OR on the Horan incident or in his CISU statement. He
indicated that one factor he took into account when deciding to take Horan down was his
?unpredictability?. I found his evidence about Horan?s unpredictability and how he learned
about it too convenient and not believable. I felt the same way about his comment to the
investigator during his CISU interview that Horan ?has a history of being assaultive.? He
provides no basis for this conclusion because he has no basis for it. Most of the witnesses who
offered an opinion about Horan described him as someone who can be loud and verbally abusive,
but not prone to being a physical threat. One cannot help but form the conclusion that CO
Orton?s references to Horan?s ?unpredictability? and ?history of being assaultive? were attempts
to offer some false justification for his conduct with Horan.
COs Orton and Noseworthy testified that Horan threatened to spin kick CO Orton when
they were on the second floor landing. Although Horan was speaking loudly on the return
escort, COs Burnett, Fredericks and Foster did not hear Horan make such a threat. COs Orton
and Noseworthy do not refer specifically to this threat in their ORs on the Horan incident.
Although they concede that their ORs are not adequate, one would think that any specific threat
to an officer would be referred to in an OR dealing with the use of force. Their ORs indicate that
Horan did not make a specific or direct threat to them until they were on the first floor. These
circumstances lead me to disbelieve COs Noseworthy and Orton when they claim that Horan
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threatened to spin kick CO Orton. I can only assume that they made this false claim to illustrate
that there subsequent conduct was justified.
The descriptions by COs Orton, Noseworthy and Fredericks about what occurred on the
first floor to precipitate the takedown vary to a considerable degree. CO Orton testified that
Horan stopped walking when he reached the end of the railing before the stairway and that Horan
moved quickly as he grabbed the railing with his left hand and turned to his left. Given the
factors he referred to in his testimony, including Horan?s history of unpredictability, he indicated
that he decided to initiate force and quickly grabbed the back of Horan?s security gown. Once
Horan stopped walking on the first floor, neither CO Orton nor any other officer asked Horan to
keep moving or directed him to keep moving. CO Orton agreed that Horan did not make a
physical gesture at the officers before he initiated force and that Horan did not make a direct
threat at the officers when he was near the laundry door. CO Orton indicates in his OR that
Horan began acting erratically on the first floor and ?was now making direct threats towards the
writer and the other escorting officer?. CO Orton wrote that Horan was ?being assaultive
towards staff during a move from the operational manager?s office? in the subject box of his OR.
The OR that CO Orton wrote the day after the Horan incident gives the impression that force was
used because Horan was ?assaultive? towards staff and made direct threats against them. His
testimony conveys a different impression.
In his testimony, CO Noseworthy gave a version of what occurred on the first floor that
was somewhat similar to CO Orton?s. He indicated that once he saw CO Orton move in and put
his hands on Horan, he moved around to the other side of Horan and was swiped in the face by
Horan. He stated that before he could assist, CO Orton had taken Horan to the floor, perhaps
80
with CO Fredericks assistance. In his OR, CO Noseworthy wrote that Horan became agitated on
the first floor and that he started to threaten staff. Confronted with this situation, he wrote that he
and CO Orton decided to put handcuffs on Horan and when Horan resisted, he was taken to the
floor. CO Noseworthy gives the impression in his OR that force against Horan was initiated
after Horan threatened staff and after he resisted the application of handcuffs. In his statement
on the A&I Report, CO Noseworthy wrote that Horan was taken to the ground because he
attempted to assault an officer. CO Noseworthy told the CISU investigator that he and CO Orton
did not actually talk about handcuffs, but that they both just recognized that the situation
warranted restraints. He also provided the investigator with a different description of his role in
the takedown. He told the investigator that after CO Orton initiated force, he assisted by trying
to free Horan?s left hand from the door frame and his right hand from the railing. He indicated
that Horan went to the floor after he freed the hand on the railing.
In his testimony, CO Fredericks indicated that Horan stopped at the boiler room stairway
and swung his arms around with open hands. He indicated that Horan was not swinging at
anyone and that it appeared that he did not want to return to segregation. CO Fredericks stated
that once Horan began swinging his arms, COs Orton and Noseworthy each grabbed one of
Horan?s arms and took Horan down, and he moved in to assist. His version is different from any
of the versions provided by COs Orton and Noseworthy. In his OR, CO Fredericks wrote that
Horan was swinging his arms in an offensive manner, while swearing and threatening, and that
COs Noseworthy and Orton grabbed each arm to control his attack. This description is different
from the one he gave in his testimony.
81
COs Orton and Noseworthy, along with CO Fredericks, did not provide a relatively
consistent and credible account of why it was necessary to use force on Horan. What is
consistent in the grievor?s versions is that Horan stopped by the laundry door and turned to his
left. Horan had stopped before on the return escort, but continued walking when CO Orton
asked him to do so. In the absence of Horan making a physical move at the officers or perhaps
even a direct threat, it is difficult to appreciate why Horan was not asked again or ordered to
keep moving before force was initiated. Given that we are dealing with the use of force, one
would expect more consistency in the versions of the incident provided by the grievors and CO
Fredericks. The failure of the grievors to provide a credible explanation for using force, their
different accounts about why force was required and the different descriptions each grievor gave
about key aspects of the incident in his testimony, his OR and his CISU statement affects their
credibility generally and makes more probable CO Burnett?s version about how force was
initiated.
CO Orton denied signaling to CO Burnett not to activate the code blue alarm. Indeed, he
claims that he told her to activate the alarm. I found his testimony not credible on this point and
CO Burnett?s version more probable. Given the number of officers present and the fact that
Horan was essentially under control on the floor, it is unlikely that CO Orton would have thought
it necessary to activate the alarm. The only reason CO Burnett had for activating the alarm was
to try to stop the excessive use of force on Horan. I am satisfied that CO Burnett told the
grievors ?That?s enough? when Horan was on the floor and received no response. When she told
them that she would activate the alarm, CO Orton looked at her and made a motion across his
throat, signaling her not to hit the alarm. CO Basar confirms that CO Orton made such a motion.
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To the extent that the testimony of COs Fredericks and Foster conflicts on material
matters with the testimony of COs Burnett and Basar, I preferred the testimony of COs Burnett
and Basar. It is possible, although unlikely, that COs Fredericks and Foster did not see CO
Noseworthy push Horan and did not hear him then tell Horan to slow down.It is also possible,
although unlikely, that CO Fredericks did not see the initial punches when Horan was walking
and that he did not see any punches when he was attempting to secure Horan on the floor, given
that he was facing away from COs Noseworthy and Orton. In my view, COs Fredericks and
Foster were not prepared to violate the code of silence when they were asked initially about the
incident and they continued with this approach during their testimony. Unlike COs Burnett and
Basar, they were not willing to disclose the misdeeds of fellow officers.
A number of witnesses testified about conversations each had with Horan after the
incident and what Horan said or did not say to them. What Horan said to them is hearsay. RN
Imeson testified that Horan told her that he had been assaulted, but did not say who did it. He
told her that the officers were out to get him because of the way he treated the arresting officer,
one of their friends. He also told her that his nose was hit. CO Burnett testified about Horan
asking her to support him when he charged officers for their misconduct. SM Trudell indicated
that Horan told him a number of things including that he wanted to charge CO Noseworthy for
twisting his ankle and that CO Noseworthy could get him again if he complained. CO Beaul
testified that Horan told him that he took a swipe at CO Noseworthy because he wanted to get
the first strike in. I gave no weight to this hearsay evidence.
On the day following the Horan incident, CO Noseworthy had a discussion with CO
Basar and made a comment to CO Burnett at the conclusion of her shift. I believe COs Burnett
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and Basar?s accounts of their interaction with CO Noseworthy. In essence, CO Noseworthy
raised a concern with CO Basar about him telling management about the Horan incident. One of
the things CO Basar said to CO Noseworthy is that he did not condone the beating up of Horan.
CO Noseworthy asked CO Burnett if she was going to put everything down on paper. These
conversations at least reveal that CO Noseworthy had a concern about what might be conveyed
to management about the Horan incident. One would have thought that CO Noseworthy would
have raised a concern with the Union and the Employer about the fact that COs Basar and
Burnett were possibly conveying false information about his conduct with Horan. There is no
indication in the evidence that he did so.
As I noted previously, the evidence about injuries to Horan did not cause me to doubt
COs Burnett and Basar?s version of the Horan incident, particularly their contention that COs
Noseworthy and Orton punched Horan a number of times. The activation of the code blue alarm
resulted in a number of individuals arriving on the scene with the opportunity to observe Horan
and many of them testified that they did not notice that he was injured. However, most of these
witnesses, such as COs McGhee, Foster and Beaul, were not particularly focused on whether
Horan had any injuries. They did not notice the injuries that RN Imeson had detected, although
these would not have been that obvious.
One would expect that SM Trudell and RN Imeson would be more focused on whether
Horan had sustained any injuries. SM Trudell testified that nothing about Horan?s condition
stood out for him on the day of the incident, although he could not recall looking for any
physical problems. When SM Trudell spoke to Horan the following day about the laying of
charges, he observed Horan from outside his cell and did not notice any injuries. It is unclear
84
from his position whether he would have been able to notice any injuries, even if there were any
that were observable. At best, he would only be in a position to observe the parts of Horan that
were not covered with clothing. SM Trudell also did not observe the injuries identified by RN
Imeson.
RN Imeson observed red bruising to Horan?s nose, a laceration to his thumb and she
referred to tenderness to his ankle. She concluded that the bruising on his nose was not caused
by a punch even though Horan told her that his nose was hit. Any time she observed Horan, he
was clothed. She did not observe a graze to his leg that the doctor apparently detected.
Although she concluded that Horan?s injuries were not serious, her actions suggested that she
believed that he had been assaulted by COs. Before she saw Horan on the day after the incident,
she told OM Maccarone that they should keep an eye on Horan because they might try to get
Horan again. She felt that it was prudent to go with Horan to the video court area because CO
Orton was nearby and she wanted to prevent any further escalation.
The fact that the observable injuries to Horan were minor at best does not lead to the
inference that Horan could not have been punched by the grievors as alleged by COs Burnett and
Basar. The first two punches he received to the head as he was heading towards segregation
would likely not have left any observable injury, given that they landed in areas covered by hair.
Most of the punches that were thrown at Horan when he was on the ground were to his body,
which was covered by the security gown, and therefore not observable. The evidence suggests
that Horan was struggling to a degree when on the floor thereby raising the possibility that some
of the punches did not connect with full force. CO Burnett testified that she did not recall any
punches to Horan?s face. CO Basar testified that Horan was punched in the face and that he
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noticed some bruising on the face, but he could not recall where. Perhaps he noticed the same
bruising on Horan?s nose that RN Imeson had noticed. It is also possible that CO Basar is
incorrect about Horan being punched in the face, although I have no doubt that he believes this to
be the case. As noted previously, it would not be surprising that a witness may have some
difficulty in observing and recalling where all the punches landed given the nature and speed of
the incident. I note that the reference by CO Basar to red marks on Horan?s legs from being
stepped on may relate to the scrape Dr. Child referenced in the A&I Report. The injury to
Horan?s ankle is also the kind of injury that would likely be undetectable.
As the Union argued, one might expect that a person who is punched a number of times
would have some observable injuries. However, this is not necessarily the case and, for the
reasons outlined above, this is one of those cases where there were few observable injuries. As
noted previously, the evidence about injuries to Horan does not cause me to doubt that Horan
was punched by the grievors, given the clear evidence from COs Burnett and Basar that punches
were thrown.
It is the foregoing considerations that primarily led me to prefer COs Burnett and Basar?s
versions of the incident, rather that the versions offered by COs Noseworthy, Orton and some of
the other witnesses. I find that on the return escort to segregation, CO Noseworthy pushed
Horan on a number of occasions and then told him to slow down. I also find that COs
Noseworthy and Orton initiated unjustified force on Horan when they each punched him in the
head as he was walking near the laundry door on the first floor and that they each punched Horan
a number of times when he was on the floor.
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There is no doubt that Horan was depressed, upset and angry during the return escort and
that he was loud and verbally abusive. Escorting him after a suicide attempt from segregation to
the IC?s office on the third floor in a security gown was not a wise decision. OM Keating?s
decision in this regard was one of the reasons for his suspension. CO Noseworthy?s verbal
exchanges when he swore at Horan and his pushing Horan only served to inflame the situation.
Undoubtedly, Horan?s conduct would have been very frustrating for any officer. Since they
denied using excessive force, the grievors obviously did not explain why they punched Horan.
However, one can infer from the evidence that they had had enough of his loud verbal abuse and
that they took out their frustration by exerting excessive force. In doing so, they failed to
exercise the kind of self control consistent with their training and their responsibility.
The Caza Incident
To reiterate, CO Basar testified that CO Beltrano punched Caza two or three times on the
head while he was down on mattresses in the hallway of N Ward and then dragged him to A&D.
He indicated that CO Noseworthy kicked Caza on the torso and legs as he was dragged to A&D
and that Noseworthy also jumped on him.
CO Beltrano?s version has Caza moving quickly out of N range and falling on the
mattresses in the hallway. He indicates that he quickly reached Caza and attempted to physically
lift him up from the mattresses. CO Beltrano did not ask Caza to get up and he did not give him
a direction to do so. Caza was not doing anything which would have created a risk that required
a hands on approach. He was just laying on the mattresses. The fact the no other officer came to
assist is further indication that no one perceived the situation as problematic. I have no doubt
from the evidence that if Caza created some risk to himself or to an officer that CO Noseworthy
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would have jumped in to assist. CO Beltrano agreed that there was no reason why he should not
have requested Caza to get up before using some force on Caza. Even if one were to accept his
version of what occurred, CO Beltrano applied some force on Caza in circumstances where force
was not warranted. In his version, CO Beltrano used minimal force on Caza, even when falling
on him.
CO Beltrano?s version of what occurred describes an unusual event. In his version, Caza
essentially runs out of N range, falls on some mattresses and yells ?Don?t hurt me.? CO Beltrano
says that he tried to pick Caza up from the mattresses, fell on top of Caza?s upper body and then
lifted him off the mattresses. It is improbable that anyone in the immediate vicinity of this
incident would fail to see it and not remember it. Yet COs Heggie and Noseworthy indicate that
nothing of the sort described by Beltrano occurred. CO Heggie says that Caza quickly moved
out of N range, but that CO Beltrano quickly reached him, got hold of his coveralls and escorted
him to A&D. CO Noseworthy says that nothing out of the ordinary occurred. CO S. Tennant
also says that nothing out the ordinary occurred, although he may not have been in a position to
see Caza fall on the mattresses. Simply put, no one who testified about the incident corroborates
CO Beltrano?s account of what took place in the hallway once Caza left N range. Utilizing the
code of silence, COs Heggie and Noseworthy elected to indicate only that nothing unusual
happened, rather than implicate CO Beltrano in any wrongdoing. The same applies with to CO
S. Tennant and his testimony about the conduct of COs Beltrano and Noseworthy. CO Heggie
was clearly uncomfortable when he testified. CO Noseworthy was implicated in the incident and
had his self-interest to protect. Although CO Basar confirmed that Caza was on the mattresses,
he did not indicate that CO Beltrano fell on Caza when he first tried to lift him from the
mattresses.
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Given the nature of the encounter with Caza in CO Beltrano?s version of the event, the
situation warranted the filing of an OR. CO Beltrano agrees that he should have filed an OR on
the Caza incident, although he testified initially that he did not file one because the incident with
Caza was not significant. His other explanation for not filing an OR is that OM Taylor told him
that he did not have to file one. This explanation is simply not believable. CO Beltrano says that
he told OM Taylor what occurred with Caza and asked him if he wanted an OR. This
conversation takes place after inmate Munro was taken to see OM Taylor about an assault
complaint. CO Beltrano says that OM Taylor told him that he did not need to file an OR. It is
highly unlikely that any OM would not require an OR for an event as described by CO Beltrano.
Indeed, although he could not recall speaking with CO Beltrano at the end of the shift, OM
Taylor indicated that he would have requested him to file an OR if CO Beltrano had told him his
version of what had occurred with Caza. I find that CO Beltrano did not convey to OM Taylor
his version of the Caza incident and OM Taylor did not tell him that an OR was unnecessary. It
is probable that CO Beltrano did not file an OR because he did not want to highlight the incident
with Caza. This view is reinforced by the fact that CO Beltrano did not file an OR after he found
out from CO Basar that Caza?s mother called SM Trudell to complain about Caza being
assaulted at the WJ. CO Beltrano would have recognized that the matter was of some
significance and his failure then to file an OR or to raise the matter with OM Taylor again
indicates a desire not to highlight the matter. Given CO Basar?s description of what had
occurred, it is not particularly surprising that CO Beltrano would not want to draw attention to
the incident.
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When asked what he knew about the Caza matter during his CISU interview, CO
Beltrano initially told the investigators that nothing out of the ordinary occurred. With this
approach, he was doing what COs Heggie, Noseworthy and S. Tennant did in their testimony.
When an investigator strongly suggested that he was not telling the truth, CO Beltrano then gave
the version of the incident which he provided in his testimony. He did not explain in his CISU
statement that he had provided his initial version because he was told that criminal charges were
pending. Whatever his reason for giving that initial version to the investigators, it is significant
that he was prepared to and did give a version of the event that was not truthful. This does not
enhance his general credibility and casts doubt about whether the second version is credible.
CO Beltrano denied that he threatened to assault Munro during the escort to the
ICs office if Munro mentioned anything about an assault to OM Taylor. There is no reason for
CO Basar to fabricate this aspect of his testimony and there are obvious reasons why COs
Beltrano and Heggie would have an interest in not disclosing that such a comment was made to
Munro. Given CO Basar?s account of what COs Beltrano and Noseworthy did to Caza, it is not
surprising that CO Beltrano wanted to ensure that Munro would not disclose any assault by
officers to OM Taylor. I find that CO Beltrano did threaten Munro as alleged by CO Basar.
The lack of evidence about any observable injuries to Caza does not disprove CO Basar?s
testimony. CO Basar himself testified that he did not observe any injuries to Caza. Apart from
any indication as to what force was used with each punch and whether Caza?s efforts to evade
the blows by covering his face with his hands played a role in affecting their force, it is difficult
to determine whether any injury would have been observable from CO Beltrano?s two or three
punches to the temple area of Caza?s head. The kicking to the torso and leg area by Noseworthy
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was likely covered by Caza?s coveralls. It is unlikely that anyone who was involved in covering
up the assault on Caza would report any injuries, even if they noticed any. This includes the
officers involved in the strip search of Caza on July 28, 2002, and any search of Caza by CO S.
Tennant on the following day when Caza was released. OM Adam did not question and observe
Caza until he returned to the WJ five days later. Since Caza was to be released, OM Adam did
not observe Caza without his street clothes on. OM Adam did not lift Caza?s shirt to check his
chest and back like OM Taylor had done with inmate Munro. It is very unclear as to whether
there would have been any observable injuries at that time to those parts of Caza?s body that OM
Adam could see, even if they were observable previously.
CO Adam?s testimony about Caza stating that there was no assault when he interviewed
him on August 2, 2002, is of course hearsay and thus of no assistance. In this respect, it is not
unlike the call to SM Trudell from Caza?s mother claiming that Caza sustained a number of
injuries from an assault by officers at the WJ. I would note that OM Adam?s discussion with
Caza about whether he wanted to make a complaint about his treatment took place after Caza had
been told that he would not be serving more time because of his misconducts and that he was
about to be released. Pursuing a complaint was perhaps not a priority for Caza at that time. In
addition, he may have perceived that breaking the code of silence was not in his interest.
In summary, for the foregoing reasons, I preferred CO Basar?s version of the Caza
incident to the versions provided by COs Beltrano, Noseworthy, Heggie and S. Tennant. CO
Beltrano?s willingness to submit to a polygraph test is a factor in his favour, but it cannot
outweigh those elements that damage his credibility. In considering all of the relevant evidence
relating to this incident, I find that, on July 28, 2002, CO Beltrano punched Caza two or three
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times near the temple area of his head and then dragged him to A&D and that CO Noseworthy
kicked Caza on his legs and torso, and jumped on his legs.
As the evidence illustrates, intermittents with contraband were a serious and persistent
problem. Caza had been recognized as an inmate who was often prepared to contravene the rules
relating to contraband. The breach of these rules by intermittents meant that officers were often
required to search cells and strip search inmates. Since they also denied that they used excessive
force, the grievors did not provide an explanation for their use of excessive force on Caza. From
the evidence, it is possible to infer that the grievors were displeased that intermittents were again
contravening the rules about contraband and that Caza ran out of N range and fell on the
mattresses in the hallway, rather than walking normally to A&D. It appears that the grievors
became upset and addressed the frustrating situation by using excessive force on Caza. In doing
so, they failed to exercise the kind of restraint required by COs.
Appropriate Penalty
The Employer has established by clear and cogent evidence that COs Orton and
Noseworthy used excessive force on inmate Horan and that COs Beltrano and Noseworthy used
excessive force on inmate Caza. I am also satisfied that no force was required in either of the
incidents. I find it unnecessary to address the other offences the Employer relied upon when it
disciplined the grievors. Having established cause for discipline, the next issue concerns the
appropriateness of the penalty of discharge.
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The grievors had discipline free records, but have been employed with the Ministry for
only a relatively short period. As noted previously, CO Noseworthy was hired in September of
1998, CO Orton in November of 2001 and CO Beltrano in February of 2000.
I have considered the contents of each grievor?s personnel file that was placed in
evidence. I have taken note of any commendations a grievor may have received. I have also
considered any evidence concerning the personal circumstances of the grievors. In this regard, I
refer in particular to the tragic loss of CO Beltrano?s wife to cancer and the challenges he faced
during her illness.
The key factors in assessing the appropriateness of the penalty in this case are the
seriousness of the offence and the false denial of the grievors about committing the offence. As
noted previously, COs are responsible for the care, custody and control of inmates and as peace
officers they occupy positions of trust. As arbitrators and the Courts have recognized, the
physical assault of an inmate by a CO without cause constitutes a breach of trust of the highest
order and a most serious offence. See, R v. Sammy,supra,Re Government of Province of British
Columbia and British Columbia Government Employees Union (Correctional Services
Component),supra, and New Brunswick (Board of Management) v. Robinson,supra.
The conduct of the grievors was fundamentally contrary to their obligations as COs. By
itself, this conduct is indicative of an irreparable breakdown in the employment relationship.
Their denial of the offence serves to compound the breach of trust and further indicates that the
employment relationship cannot be rehabilitated. This is not a case where reinstatement or any
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remedy favouring the grievors is appropriate. To determine otherwise would be to undermine a
fundamental responsibility of a CO.
Accordingly, the discharge grievances filed by COs Noseworthy, Orton and Beltrano
dated January 27, 2004, are hereby dismissed.
th
Dated at Toronto, this 11 day of August 2008.
Ken Petryshen ? Vice-Chair
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